Stuart Simonton v. the State of Texas

Affirmed and Memorandum Opinion filed August 27, 2024.

In The

Fourteenth Court of Appeals

NO. 14-23-00362-CR

STUART SIMONTON, Appellant

V.
THE STATE OF TEXAS, Appellee

On Appeal from the 174th District Court
Harris County, Texas
Trial Court Cause No. 1647461

MEMORANDUM OPINION

A jury found Appellant Stuart Simonton guilty of first-degree murder and
assessed punishment at 38 years’ confinement. Appellant appeals and, in four
issues, challenges certain evidentiary rulings and the trial court’s failure to grant a
mistrial following the State’s closing argument. For the reasons below, we affirm.

BACKGROUND

Appellant was arrested the evening of April 3, 2019, and charged with first-
degree murder of his downstairs neighbor, Complainant. He proceeded to a jury
trial in May 2023. The jury heard from seventeen witnesses; we summarize
relevant portions of their testimonies below.

Anjanette Delgado

Anjanette Delgado is Complainant’s niece. According to Delgado, she, her
husband, and their two children arrived at Complainant’s apartment building at
approximately 6:30 p.m. on the day of the incident for a barbecue. According to
Delgado, no one else was present at the gathering aside from her family and
Complainant.

Delgado testified that their barbecue was “constant[ly]” interrupted by
Appellant, Complainant’s upstairs neighbor. Delgado said Appellant would
“shout” at them to “be quiet” and accused them of “trying to burn his apartment
down.” Delgado said Complainant told everyone to “just . . . ignore him.”

According to Delgado, the Houston Fire Department arrived shortly
thereafter responding to a fire reported by Appellant. Delgado said her family
pointed out to the responding firefighters that the only fire was in the fire pit.
Delgado said Appellant walked downstairs to talk to the firefighters and, during
this time, told Delgado’s husband “I’ll beat your ass” and “got in [Delgado’s]
face.” Delgado said Houston police officers arrived at the apartment building after
the firefighters left.

After the police officers left, Delgado said everyone in their group
“continued to sit there and have a good time on the picnic table.” Delgado testified
that she, her husband, and their children left at approximately 10:00 p.m.

Sergio Lopez

Sergio Lopez is a firefighter with the Houston Fire Department and

2
responded to Appellant’s report of a fire the evening of April 3rd. During their
response, Lopez said the firefighters found “a woman out there barbecuing with
her family” and “no fire” but rather “a barbecue pit that was smoking.” According
to Lopez, the incident was called in as a “false alarm” and there was no danger
from the barbecue pit “potentially catching the house on fire.”

Lopez recalled that, while the firefighters were there, a man stuck his head
out of an upstairs window to argue with the people outside the apartment building.
Lopez said the firefighters “call[ed] the police out because it turned into basically
like a domestic dispute.” Lopez testified that the firefighters left when the police
officers arrived.

According to Lopez, the fire department again was called out approximately
two hours later to respond to reports of a stabbing. Lopez said he found
Complainant “laying on the ground with several stab marks, not breathing, not
conscious, unresponsive.” Lopez recalled that Complainant had three stab
wounds: two in her chest and one in her back. Lopez said Complainant was
loaded into an ambulance and transported to the hospital.

Officer Hernandez

Officer Hernandez is one of the police officers who responded to the
domestic violence incident reported at Complainant and Appellant’s apartment
building the evening of April 3rd. Recalling her conversation with the firefighters,
Officer Hernandez stated that they had no concerns about a fire because “it was
just a fire pit where . . . they were barbecuing.” Summarizing her thoughts on the
incident, Officer Hernandez said that her “impression was there was people just
trying to barbecue and there was some type of disagreement about some smoke
that might have been coming from the fire pit.” Officer Hernandez testified that
“the neighbors were both upset at each other.”
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Officer Hernandez said Appellant came downstairs from his apartment unit
to speak to the responding officers. According to Officer Hernandez, Appellant
“seemed belligerent” and “upset,” and kept stating that he “was the enforcer.”
Officer Hernandez said she “asked [Appellant] if he had a weapon just because he
seemed that upset.” Describing Appellant as “unreasonable,” Officer Hernandez
said he repeatedly stated he “wanted them out and that he wanted to make that
decision, but I kept telling him, again, he wasn’t the property owner.” Officer
Hernandez felt that Appellant “was upset that we weren’t — he felt like we
weren’t siding with him because no one was going to jail.”

Officer Hernandez recalled the following exchange with Appellant:

And [Appellant’s] like, “Oh, well, tomorrow things are going to
change. As of tomorrow things are going to change.” I remember
saying — I remember him saying that. And that’s when I said, “Sir,
you might want to watch the way you say things because someone
might perceive that as a threat, like you’re threatening that you’re
going to do something tomorrow.”

According to Officer Hernandez, she called the district attorney’s office and
“explained to them that it was — it was a disturbance between two neighbors who
had conflicting statements in regard to what each other were saying and threats that
were — had been made by each other.” Officer Hernandez said the decision was
made to deny pressing charges stemming from the incident. Officer Hernandez
said the officers completed their report and left the scene at approximately 10:00
p.m.

Gustavo Saucedo

Gustavo Saucedo lived in the apartment building next to the building
occupied by Complainant and Appellant. Describing the day of the incident,
Saucedo said he was inside his apartment unit when he saw firefighters and police

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officers arrive at the barbecue. After the firefighters and police officers left,
Saucedo said he went over to visit Appellant in Appellant’s apartment. Saucedo
said he and Appellant were “friendly” and occasionally hung out together.

Saucedo recalled that he and Appellant drank alcohol and played video
games that evening. During their visit, Saucedo used his phone to surreptitiously
record his conversation with Appellant. Saucedo said he recorded the conversation
because he was concerned about Appellant’s “body language” and wanted to
record “for [his] safety just in case something happened between [him] and
[Appellant].”

The video recording was admitted into evidence. According to Saucedo, he
and Appellant were discussing growing marijuana plants when they had the
following exchange:

Appellant: Let me ask you a question. Should I kill ‘em? Should I
let her make it?
Saucedo: What, the plant?

Appellant: No, not the plant, her. Should I let her make it? Or
should I have her fucking institutionalized? ‘cause I can
do that quick.
Saucedo: That’s you.

Appellant: Trust me, I’m an asshole bro. I don’t give a fuck.

The video recording does not show the men as they are talking and shows only the
bottom of Appellant’s legs.

Discussing the recording, Saucedo said that, as Appellant “was asking about
killing something,” Appellant “pointed down.” Saucedo interpreted this gesture to
mean that Appellant was referencing Complainant, who lived downstairs.

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Saucedo said he left Appellant’s apartment shortly thereafter and, as he
walked out the door, saw Complainant sitting on a chair on the balcony. Saucedo
recalled that Complainant was drinking alcohol and “appeared to be intoxicated.”
Saucedo said he was not surprised to see Complainant sitting there because he
previously had seen her sitting on the balcony. According to Saucedo, “whenever
[Complainant’s] up there by herself, she’s always happy.” Saucedo testified that
he had no difficulty recognizing that the person on the balcony was Complainant.

Saucedo said he had returned to his apartment unit when, approximately ten
minutes later, Complainant came screaming to his door saying that Appellant “had
stabbed her.” When he walked out the door, Complainant was laying on the floor.
Saucedo said he called 911 and stayed with Complainant until the ambulance
arrived.

Trinity Juneau

Trinity Juneau is the sister of Saucedo’s wife. On April 3rd, Juneau was
living with Saucedo and his wife in the apartment building next door to the
building occupied by Complainant and Appellant. Juneau was fifteen years old.

Juneau recalled the fire department arriving at the barbecue in response to
Appellant’s call. According to Juneau, Appellant “was upset about the family
being over there and they were having a fire too close to the building and just upset
about the noise and everything.” Juneau said she left to church shortly thereafter
and arrived back at the apartment buildings by 9:00 p.m.

That same evening, Juneau went with Saucedo to hang out in Appellant’s
apartment. Juneau said she left at approximately 10:30 p.m., walked downstairs,
and saw Complainant cleaning up after the barbecue. Juneau returned to her room,
which was located across from Appellant’s apartment unit.

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When she was in her room, Juneau recalled hearing Appellant say, “‘What
are you doing,’ or, ‘Bitch, what are you doing,’ something of that matter.” Juneau
“looked through the peephole in [her] door” and saw Complainant sitting on a
balcony chair outside Appellant’s apartment door. Juneau testified that she saw
Appellant “run inside” and then “run back outside and hit [Complainant] twice.”
Juneau thought that Appellant “just punched” Complainant. Juneau did not see
anything in Appellant’s hands and thought he and Complainant “were both drunk,
just kind of fighting.”

Juneau said Complainant was sitting in the balcony chair during the entirety
of her encounter with Appellant. According to Juneau, apartment “residents would
come up there, just sit, and look over at the bar across the street.” Juneau said it
was not unusual to see Complainant up there because, “when [Complainant] would
be drinking, she liked to look at the stars and look at the sky.”

Shortly after witnessing the incident on the balcony, Juneau said
Complainant started screaming for her and Saucedo while yelling, “[h]e stuck me,
he stuck me, he stuck me.” Juneau exited the apartment unit and saw Complainant
on the ground and Saucedo calling 911.

According to Juneau, she spoke to investigators a couple of days later but
did not tell them what she saw through the peephole in her apartment door. Juneau
said she “was just scared” and “didn’t want to come do this.” Juneau said she
relayed what she witnessed approximately three years later because “it was just
time to get it over with.”

Officer Perez

Officer Perez is one of the police officers that responded to reports of a
stabbing at Complainant and Appellant’s apartment building on April 3rd. Officer

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Perez recalled arriving at the scene and seeing a “deceased” Complainant. Officer
Perez proceeded to place Appellant in handcuffs. Officer Perez said that Appellant
was “compliant” and “voluntarily” talked to him.

While he was detained, Officer Perez recalled Appellant saying he “grabbed
the knife from [Complainant] and stabbed her” in “self-defense.” Appellant told
Officer Perez that the incident took place on the balcony area immediately outside
his second-floor apartment unit. Officer Perez remembered seeing blood on the
staircase near Appellant’s apartment unit.

Detective Jimenez

Detective Jimenez met with Appellant after Appellant was transported to the
police station. Describing his first meeting with Appellant, Detective Jimenez said
Appellant “seemed okay” and was “not really distraught.” However, once
Appellant was told that Complainant died, Appellant “got pretty distraught, started
crying, and pounding his hand on the [] floor, dropped to his knees, that kind of
thing.” Detective Jimenez said, at one point, Appellant expressed that he just
“wanted [Detective Jimenez] to shoot him.”

According to Detective Jimenez, Appellant gave “one of the versions” of
what happened and stated that he stabbed Complainant after she “attacked” him
and “came at him with a knife.” Detective Jimenez said Appellant asserted he
“never meant to hurt her” and that “she scared him, she wasn’t supposed to be up
there.” When asked why Complainant was on the balcony outside his apartment,
Appellant stated that he “guessed that she was trying to talk to him” and was
“trying to make amends.” Appellant recalled that Complainant was sitting in a
chair near his front door at the time of the incident.

Detective Jimenez said Appellant provided a different “version” of events

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shortly thereafter. Appellant told Detective Jimenez that a “crackhead” previously
had come to his apartment and pointed a gun in his face. Appellant told Detective
Jimenez “he thought [Complainant] was that crackhead” and “tr[ied] to stab her in
the arm to disarm her.” Appellant also told Detective Jimenez he “ha[d] a steak
knife in his hand and then he happened upon [Complainant] sitting on a chair and
he gave her a little stab.” Appellant gave several different reasons for why he had
a knife: eating steak, cutting cheese, and opening cat food. Detective Jimenez
pointed out that, earlier in their interview, Appellant said he took the knife from
Complainant.

Appellant told Detective Jimenez he stabbed Complainant only once.
However, according to Detective Jimenez, Complainant had “at least two
punctures and several other possible defensive wounds.” Photographs of Appellant
were admitted during Detective Jimenez’s testimony; these photographs showed
that Appellant had red scratches on his arms.

Detective Jimenez said the entire interview lasted for approximately six
hours. Summarizing Appellant’s statements regarding the incident, Detective
Jimenez said it appeared that Appellant offered multiple versions of the events that
occurred. According to Detective Jimenez, Appellant appeared to be “changing his
story” and “looking for details to alter to explain away.” Detective Jimenez did not
think Appellant was intoxicated and said he “talked very clear.”

According to Detective Jimenez, a search warrant was issued for Appellant’s
apartment and a video surveillance system was recovered. Detective Jimenez said
he and Appellant reviewed the footage for several days preceding the incident but
they were unable to find the “crackhead incident” that, according to Appellant, had
“happened several days before.” Detective Jimenez also said there was no video
footage from the day that Complainant was stabbed. Detective Jimenez recalled

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that Appellant seemed “surprised when there was no footage on the day of this
murder.”

Dr. Maclayton

Dr. Maclayton is an assistant medical examiner at the Harris County
Institute of Forensic Sciences. Dr. Maclayton reviewed the autopsy performed on
Complainant the day after her death.

Dr. Maclayton identified “multiple sharp force injuries” on Complainant,
including two stab wounds to the chest, one stab wound to the back, and a sharp
force injury on Complainant’s left hand. Dr. Maclayton opined that the injury to
Complainant’s hand was “consistent with other defensive wounds” she had seen in
her practice.

Discussing the wound to the left side of Complainant’s chest, Dr. Maclayton
said the knife entered the upper lobe of Complainant’s lung and pierced the side of
her heart. Dr. Maclayton opined that either of these injuries could have caused
Complainant’s death through uncontrolled bleeding into the chest cavity. During
this testimony, a photograph was admitted showing a medical container filled with
blood collected from Complainant’s chest cavity.

On cross-examination, Dr. Maclayton reviewed the toxicology report
completed during Complainant’s autopsy. The toxicology report showed that
Complainant’s alcohol levels were 0.124 grams per 100 milliliters and 0.146 grams
per 100 milliliters for blood collected from her femoral artery and vitreous humor,
respectively.

Rebecca Gonzales

Rebecca Gonzales works at the Houston Forensic Science Center and
reviewed the DNA evidence obtained in this case. Gonzales said she performed

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DNA analyses on three knives recovered from the scene where Complainant was
stabbed. Gonzales opined that, “if two people are struggling over an item of
evidence,” it is likely “that the DNA would be on the item.”

According to Gonzales, one knife recovered from the scene did not have
enough human DNA detected on it as necessary to move forward with the
comparison process. Gonzales testified that the second knife recovered from the
scene had human DNA on it and “both [Complainant and Appellant] were
excluded as possible contributors to the mixture.”

Finally, with respect to the third knife, Gonzales testified that the DNA
provided “very strong support that [Complainant] and [Appellant] are contributors
to the DNA from this item.” Gonzales said DNA testing also was done on a swab
taken from a stain on the knife that was believed to be blood. Gonzales testified
that the analysis provided support for the conclusion that Complainant was a donor
to the DNA mixture in the bloodstain and that Appellant was not a DNA
contributor.

William Faison

William Faison lived at the same apartment complex as Complainant and
Appellant and resided there at the time of stabbing. Faison said he and
Complainant were “causal acquaintances” and occasionally would barbecue
together.

When asked about the relationship between Complainant and Appellant,
Faison testified that “[t]hey didn’t like each other.” Although Faison said he got
along with both Complainant and Appellant, he also said he would not invite them
to the same social event because he “understood that they didn’t get along.”

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Conclusion of Trial

After the parties rested, the jury retired to deliberate and returned a verdict
finding Appellant guilty of murder. See Tex. Penal Code Ann. § 19.02. The jury
assessed punishment at 38 years’ confinement and a $10,000 fine.1 See id. § 19.32.
Appellant timely appealed.

ANALYSIS

Appellant raises four issues on appeal and asserts:

1. the trial court erred in failing to grant a mistrial “due to the
prosecutor’s inflammatory and impermissible closing argument”;
2. the trial court erred in admitting Saucedo’s video recording of his
conversation with Appellant;
3. the trial court erred in excluding Appellant’s medical records from the
evidence; and
4. the trial court erred in admitting into evidence a photograph of the
blood drained from Complainant’s chest cavity.

We consider these issues individually.

I. The State’s Closing Argument

During his closing argument, the State’s prosecuting attorney told the jury:

Now we also have the “she was drunk” defense. I don’t think

1
We note that the $10,000 fine was not orally pronounced by the trial court as part of
Appellant’s sentence. However, the fine was assessed as part of the jury’s verdict and included
in the written judgment.
As a general rule, when the oral pronouncement of a sentence and the written judgment
vary, the oral pronouncement controls. See Taylor v. State, 131 S.W.3d 497, 500 (Tex. Crim.
App. 2004); Lopez v. State, 515 S.W.3d 547, 549 (Tex. App.—Houston [14th Dist.] 2017, pet.
ref’d). However, because “[t]he jury’s verdict imposed a lawful fine within the permissible
statutory range, and its verdict was read aloud in court in [Appellant’s] presence,” the $10,000
fine may be properly imposed despite the trial judge’s failure to orally pronounce it. Ette v.
State, 559 S.W.3d 511, 515-17 (Tex. Crim. App. 2018).

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[defense counsel] really explained why [Complainant] was drunk is a
defense, but he put it out there. The only conclusion I can come to is
if somebody is drunk, she must have deserved it.

Defense counsel objected on grounds of improper argument and the trial court
sustained the objection. The trial court instructed the jury “to disregard any
comments about the defense attorney concluding that the Complainant deserved to
be killed because she was drunk.” Defense counsel also moved for a mistrial,
which the trial court denied. On appeal, Appellant contends it was error for the
trial court to overrule his request for a mistrial on this basis.

We review the trial court’s denial of a motion for mistrial under an abuse of
discretion standard. See Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App.
2009). Under this standard, we view the evidence in the light most favorable to the
trial court’s ruling and uphold the ruling if it falls within the zone of reasonable
disagreement. Id. A mistrial is a remedy intended for extreme circumstances
when prejudice is incurable and less drastic alternatives have been explored. See
id.

To evaluate whether the trial court abused its discretion by denying
Appellant’s motion for mistrial in this context, we balance the three “Mosley”
factors: (1) the severity of the misconduct (the magnitude of the prejudicial effect
of the prosecutor’s remarks); (2) the measures adopted to cure the misconduct (the
efficacy of any cautionary instruction by the judge); and (3) the certainty of
conviction absent the misconduct (the strength of the evidence supporting the
conviction). Archie v. State, 340 S.W.3d 734, 739 (Tex. Crim. App. 2011) (citing
Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) (en banc)); see also, e.g.,
Bigbie v. State, No. 14-19-00504-CR, 2021 WL 2586346, at *6 (Tex. App.—
Houston [14th Dist.] June 24, 2021, pet. ref’d) (mem. op., not designated for
publication). Mistrial is the appropriate remedy when the objectionable events are
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so emotionally inflammatory that curative instructions are unlikely to prevent the
jury from being unfairly prejudiced against the defendant. Archie, 340 S.W.3d at
739.

A. Severity of the Misconduct

Permissible jury argument falls into one of four areas: (1) summation of the
evidence; (2) a reasonable deduction from the evidence; (3) an answer to the
argument of opposing counsel; or (4) a plea for law enforcement. Gallo v. State,
239 S.W.3d 757, 767 (Tex. Crim. App. 2007). We presume without deciding that
the State’s allusion to defense counsel’s reasons for bringing up Complainant’s
intoxication falls outside these categories. However, considered in light of the
record as a whole, these statements do not constitute the type of severe misconduct
that warrants a mistrial. See Archie, 340 S.W.3d at 739.

The record contains evidence showing that Complainant had consumed
alcohol shortly before her death. Reviewing Complainant’s toxicology report, Dr.
Maclayton testified that Complainant’s alcohol levels were as follows: 0.124
grams per 100 milliliters for blood tested from Complainant’s femoral artery, and
0.146 grams per 100 milliliters for blood tested from Complainant’s vitreous
humor.2 Saucedo also testified that, when he exited Appellant’s apartment the
evening of April 3rd, Complainant was drinking alcohol and “appeared to be
intoxicated.”

But aside from these references, there is no evidence in the record showing
an interaction between Appellant and Complainant immediately before the
stabbing that was compounded by her consumption of alcohol. Rather, the

2
Under the Texas Penal Code, “intoxicated” is defined as a blood alcohol concentration
of 0.08 or more per 100 milliliters of blood. See Tex. Penal Code Ann. § 49.01(1)(B), (2)(B).

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evidence showed only that Complainant was sitting on a balcony chair outside
Appellant’s door — something she had done previously. According to both
Saucedo and Juneau, Complainant would regularly spend time on the balcony
outside Appellant’s apartment unit; Saucedo testified that Complainant was
“always happy” when she did so. In sum, given the lack of evidence showing that
Complainant’s alcohol consumption directly exacerbated the situation between her
and Appellant, any prejudicial effect stemming from the State’s insinuation that
defense counsel used Complainant’s intoxication to justify her death is limited.

Moreover, the record shows that the tension between Appellant and
Complainant had been building for hours before it culminated in her death.
Appellant called the fire department to report a fire; when the fire department
arrived, they called the police to report a “domestic dispute” that appeared to be
ongoing between Complainant and Appellant. Describing the situation, Officer
Hernandez said “the neighbors were both upset at each other” and that Appellant
wanted Complainant off the property. These sentiments were reiterated in
Saucedo’s recorded conversation between him and Appellant and suggested a
contentious relationship that preceded Complainant’s alcohol intake the day she
was killed.

Considering the evidence introduced at trial, the State’s statement during
closing argument was at worst flippant, but the statement does not constitute severe
misconduct. This factor suggests that the trial court did not abuse its discretion in
overruling Appellant’s motion for mistrial. See id.

B. Measures Adopted to Cure the Misconduct

Here, the trial court promptly sustained Appellant’s objection to the
challenged statements and instructed the jury “to disregard any comments about
the defense attorney concluding that the Complainant deserved to be killed because
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she was drunk.”

Generally, an instruction to disregard will cure harm stemming from
improper jury argument unless the comments are “so indelible that the jury would
simply ignore the trial court’s specific and timely instruction to disregard them.”
Id. at 741. For the reasons we discussed above, we conclude the challenged
statements were not “so indelible” that they would remain fixed in the jurors’
minds despite the trial court’s instruction to disregard. Therefore, this factor
counsels against concluding that the trial court erred in failing to grant Appellant’s
motion for mistrial. See id. at 739.

C. Certainty of the Conviction Absent the Misconduct

Finally, absent the State’s challenged statements, the evidence at trial
supports the certainty of Appellant’s conviction. The evidence conclusively shows
that Appellant stabbed Complainant; the only issue remaining for the jury’s
determination was whether Appellant acted in self-defense. The jury heard
conflicting testimony on this point.

Through Detective Jimenez’s testimony, the jury heard Appellant’s account
of what transpired between him and Complainant. According to Detective
Jimenez, Appellant was “pretty distraught” when he heard that Complainant had
died and initially said he stabbed her in self-defense after she “attacked” him with
a knife. But later during their interview, Appellant told Detective Jimenez he
thought Complainant was a “crackhead” that previously had threatened him.
Appellant also told Detective Jimenez he “happened upon [Complainant] sitting on
a chair and he gave her a little stab.” Summarizing his thoughts on Appellant’s
statements, Detective Jimenez said it appeared that Appellant offered multiple
versions of the events that occurred and sought to “chang[e] his story” and “look[]
for details to alter to explain away.”
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The jury also heard evidence detailing Complainant and Appellant’s
contentious relationship and their interactions that day. Faison said it was general
knowledge among the apartment residents that Complainant and Appellant did not
get along. According to Delgado, their family started barbecuing at 6:30 p.m. on
the day of the incident and were “constant[ly]” interrupted by Appellant, who
accused them of “trying to burn his apartment down.” Lopez responded to
Appellant’s report of a fire and, after determining it was a “false alarm,” called the
incident in as a domestic dispute. Officer Hernandez responded to the domestic
dispute call and, in her testimony, described Appellant as “belligerent,” “upset,”
and “unreasonable.” Appellant also told Officer Hernandez that “[a]s of tomorrow
things are going to change” — a statement that Officer Hernandez perceived as a
threat.

The video footage recorded by Saucedo sheds further light on Complainant
and Appellant’s relationship. In the video, Appellant can be heard asking Saucedo,
“Should I kill ‘em? Should I let her make it?” Saucedo interpreted these
statements as referencing Complainant. Finally, Juneau testified that she witnessed
Appellant confront Complainant while she was sitting in a chair outside his front
door, “run inside,” and then “run back outside and hit [Complainant] twice.”

Finally, forensic scientist Gonzales testified that, of the three knives
recovered from the scene, only one knife tested positive for DNA from
Complainant and Appellant. Gonzales said further testing on this knife showed
Complainant’s DNA in a bloodstain.

“The jury is the exclusive judge of the credibility of witnesses and of the
weight to be given testimony, and it is also the exclusive province of the jury to
reconcile conflicts in the evidence.” Simpson v. State, 227 S.W.3d 855, 861 (Tex.
App.—Houston [14th Dist.] 2007, no pet.) (citing Wesbrook v. State, 29 S.W.3d

17
103, 111 (Tex. Crim. App. 2000) (en banc)). Considered together, this evidence
provides a sufficient basis to support the jury’s rejection of Appellant’s self-
defense claim. Therefore, this factor does not show that the trial court abused its
discretion in overruling Appellant’s motion for mistrial. See Archie, 340 S.W.3d at
739.

For these reasons, we overrule Appellant’s first issue.

II. Appellant’s Rule 403 Objections

Appellant cites Texas Rule of Evidence 403 to support his second and fourth
issues, both of which challenge the trial court’s admission of certain evidence.
Specifically, Appellant’s second issue challenges the trial court’s admission of
Saucedo’s video recording and, in his fourth issue, Appellant challenges the trial
court’s admission of a photograph showing blood collected from Complainant’s
chest cavity. After outlining the standard of review and applicable law, we
consider these issues individually.

A. Standard of Review and Applicable Law

“We review the trial court’s decision to admit or exclude evidence, as well
as its decision as to whether the probative value of evidence was substantially
outweighed by the danger of unfair prejudice, under an abuse of discretion
standard.” Seidule v. State, 622 S.W.3d 480, 489 (Tex. App.—Houston [14th
Dist.] 2021, no pet.). A trial court abuses its discretion when its ruling lies outside
the zone of reasonable disagreement. Gonzalez v. State, 544 S.W.3d 363, 370
(Tex. Crim. App. 2018). We will 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. Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002).

To be admissible, a trial court must first determine that the evidence is

18
relevant. Henley v. State, 493 S.W.3d 77, 83 (Tex. Crim. App. 2016). Relevant
evidence is any evidence that has a tendency to make a fact more or less probable
than it would be without the evidence that is also of consequence in the action.
Tex. R. Evid. 401. Rule 403 provides that relevant evidence may nonetheless be
excluded “if its probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, misleading the jury, undue delay, or
needlessly presenting cumulative evidence.” Tex. R. Evid. 403. Using these
factors, “Rule 403 requires exclusion of evidence only when there exists a clear
disparity between the degree of prejudice of the offered evidence and its probative
value.” Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001). Rule 403
favors the admission of relevant evidence, and we presume that the probative value
of relevant evidence exceeds any danger of unfair prejudice. See Hammer v. State,
296 S.W.3d 555, 568 (Tex. Crim. App. 2009).

When undertaking a Rule 403 analysis, a trial court must balance:

(1) the inherent probative force of the proffered item of evidence
along with (2) the proponent’s need for that evidence against (3) any
tendency of the evidence to suggest decision on an improper basis,
(4) any tendency of the evidence to confuse or distract the jury from
the main issues, (5) any tendency of the evidence to be given undue
weight by a jury that has not been equipped to evaluate the probative
force of the evidence, and (6) the likelihood that presentation of the
evidence will consume an inordinate amount of time or merely repeat
evidence already admitted.

Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006).

The first two Gigliobianco factors focus on the probative force of and the
State’s need for the evidence. See id. A trial court assesses these factors by asking
the following questions: “Does the proponent have other available evidence to
establish the fact of consequence that the extraneous misconduct is relevant to

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show? . . . And is the fact of consequence related to an issue that is in dispute?”
Montgomery v. State, 810 S.W.2d 372, 390 (Tex. Crim. App. 1991) (en banc).

B. Saucedo’s Video Recording

After he was placed in handcuffs following the stabbing, Appellant told
Officer Perez he “grabbed the knife from [Complainant] and stabbed her” in “self-
defense.” Similarly, in his statements to Detective Jimenez, Appellant asserted
that he did not intentionally attack Complainant but rather stabbed her in self-
defense. Saucedo’s video recording — by reflecting Appellant’s thoughts with
respect to Complainant shortly before the stabbing — was probative of Appellant’s
self-defense claim. See Tex. Penal Code Ann. § 9.31 (“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 or
attempted use of unlawful force”); see also Padilla v. State, 254 S.W.3d 585, 594
(Tex. App.—Eastland 2008, pet. ref’d) (probative value of challenged testimony
was “considerable” because, “[a]t a minimum, it combated [the defendant’s] self-
defense theory”). Moreover, because of the conflicting evidence relevant to
Appellant’s self-defense claim, the State had a significant need for additional
evidence that would shed further light on Appellant’s state of mind at the time of
the incident. See, e.g., Scott v. State, No. 05-16-01325-CR, 2018 WL 774219, at
*4 (Tex. App.—Dallas Feb. 8, 2018, no pet.) (mem. op., not designated for
publication) (Rule 403 did not mandate the exclusion of the defendant’s entries in a
notebook; rather, “the State had a need for the complained-of evidence because it
showed appellant’s state of mind at the time of stabbing”).

Nor does the video recording suggest a decision on an improper basis or that
it confused or distracted the jury from the main issues in the case. For the reasons
stated above, the recording is directly relevant to Appellant’s self-defense claim.

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Finally, the presentation of the evidence did not consume an inordinate
amount of time or merely repeat evidence already admitted. The video recording
lasted less than a minute and Saucedo’s testimony comprised only 50 pages of the
over 700 pages of testimony.

For these reasons, the trial court did not abuse its discretion by admitting
Saucedo’s video recording over Appellant’s Rule 403 objection. See Tex. R. Evid.
403; Gigliobianco, 210 S.W.3d at 641-42. We overrule Appellant’s second issue.

C. The Photograph of Blood Collected from Complainant’s Chest
Cavity
Autopsy photographs generally are admissible unless they depict mutilation
of the victim caused by the autopsy itself. Hayes v. State, 85 S.W.3d 809, 816
(Tex. Crim. App. 2002) (en banc). Several factors may be considered in
determining whether the danger of unfair prejudice substantially outweighs the
probative value of photographs, including the number of exhibits offered, their
gruesomeness, their detail, whether they are black and white or color, whether they
are close-up, and the availability of other means of proof. Sonnier v. State, 913
S.W.2d 511, 518 (Tex. Crim. App. 1995) (en banc).

Here, the challenged photograph is fairly sterile and shows only a medical
container filled with a substance identified as Complainant’s blood. The
challenged photograph also was the only exhibit admitted to show the extent of the
bleeding caused by Complainant’s injuries.

As Dr. Maclayton described in her testimony, the stab wound to the left side
of Complainant’s chest pierced her lung and heart — injuries causing substantial
internal bleeding that pooled in Complainant’s chest cavity. Because this
photograph is relevant to show the nature and manner of Complainant’s death, it
suggests the trial court did not err in admitting it over Appellant’s Rule 403

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objection. See, e.g., Ripkowski v. State, 61 S.W.3d 378, 392-93 (Tex. Crim. App.
2001) (the trial court did not err in admitting photographs of the victim’s larynx
after it had been removed from the victim’s throat because “the photographs were
highly relevant to the manner of death — in this case, manual strangulation”); In re
J.B.C., 233 S.W.3d 88, 95 (Tex. App.—Fort Worth 2007, pet. denied) (the trial
court did not err in admitting a photograph that “depicted extensive hemorrhaging”
underneath the complainant’s skin on her skull; the photograph “depicted the full
extent of [the complainant’s] wounds and was important in determining the manner
of death”); Moreno Denoso v. State, 156 S.W.3d 166, 179 (Tex. App.—Corpus
Christi 2005, pet. ref’d) (“The autopsy and post-autopsy photographs in this case
show the nature and the manner of the victim’s death.”).

Therefore, because the photograph’s probative value is not substantially
outweighed by the risk of unfair prejudice, the trial court did not err in overruling
Appellant’s Rule 403 objection. See Tex. R. Evid. 403; Gigliobianco, 210 S.W.3d
at 641-42. We overrule Appellant’s fourth issue.

III. Appellant’s Medical Records

In his third issue, Appellant asserts the trial court erred in excluding his
medical records because they contain statements made for medical diagnosis or
treatment. See Tex. R. Evid. 803(4) (describing an exception to the rule against
hearsay for a statement made for medical diagnosis or treatment).

After his interview with Appellant, Detective Jimenez transported Appellant
to the hospital. Appellant sought to admit at trial approximately 100 pages of
medical records from this hospital visit, arguing that they contained statements
made for a medical diagnosis or treatment. The trial court ruled that the records
were inadmissible.

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After the jury returned a guilty verdict, Appellant made a bill of exception as
to what evidence would have been added to the record via Appellant’s medical
records. Appellant’s counsel and the trial court had the following exchange:

Trial Court: I thought you said you didn’t want them
admitted. Because we considered that issue a
second time3 and you said that you didn’t care
for them to be admitted.

Appellant’s Counsel: Judge, we had discussions about being able to
enter in portions of the records, and we talked
about the toxicology, and then we discussed
that it would not make sense to enter stuff
piecemeal. So —
Trial Court: We discussed the record and that it could be
redacted, any double hearsay, any information
that the law wouldn’t allow to come in. But
I’ll let you make the bill, but my recollection
is we talked about it twice. And the second
time, my understanding is that you did not
wish to have the record to come in even with
the ability to — the Court redacting what
would not be allowed under the rules of
evidence. So — but you can go ahead and
make your bill.
Appellant’s Counsel: Yes, Judge. That is correct, we made the
decision that we would not want to enter the
records with everything that had to be redacted
out of it.

Appellant again sought to admit the records in their entirety, which the trial court
denied. Appellant challenges this evidentiary ruling on appeal, which we review

3
As Appellant noted in his appellate brief, this second discussion regarding the
admission of Appellant’s medical records is not included in the reporter’s record.

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for an abuse of discretion. See Seidule, 622 S.W.3d at 489.

“When a trial judge is presented with a proffer of evidence containing both
admissible and inadmissible statements and the proponent of the evidence fails to
segregate and specifically offer admissible statements, the trial court may properly
exclude all of the statements.” Willover, 70 S.W.3d at 847. Here, the proffered
medical records contain both admissible and inadmissible statements.

First, the records show the results of Appellant’s toxicology report and
reflect that he tested positive for amphetamines and cannabinoids and had a blood
alcohol content of 0.08. Other portions of the records contain Appellant’s
statement that he “hit a key bong two days ago but I do not do meth often.” But
evidence pertaining to Appellant’s intoxication at the time of the stabbing was not
relevant to any issues before the jury and would properly be excluded. See Tex.
Penal Code Ann. § 8.04(a) (“Voluntary intoxication does not constitute a defense
to the commission of a crime.”); see also, e.g., Ramirez v. State, No. 14-05-00184-
CR, 2006 WL 1026926, at *9 (Tex. App.—Houston [14th Dist.] Apr. 20, 2006,
pet. ref’d) (mem. op., not designated for publication) (“because voluntary
intoxication is not a defense to assault, Dr. Salazar’s testimony on that point would
have been irrelevant”).

Second, portions of the records contain self-serving statements made by
Appellant regarding his version of what transpired with Complainant. See Moore
v. State, 849 S.W.2d 350, 351 n.1 (Tex. Crim. App. 1993) (en banc) (Baird, J.,
concurring) (“out of court, self-serving declarations by the accused are ordinarily
inadmissible”); Sneed v. State, 955 S.W.2d 451, 454 (Tex. App.—Houston [14th
Dist.] 1997, pet. ref’d) (the reliability of statements made for medical diagnosis or
treatment “significantly decreases” when “they are self-serving statements and
sufficient time has elapsed for [the defendant] to reflect and fabricate an

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explanation”). Specifically, the records show in numerous places that Appellant
“states that he killed someone in self-defense.” In another part of the records,
Appellant is reported as saying “he had no intention of hurting anybody else and
some are [sic] just happened.” The trial court’s exclusion of these self-serving
statements would fall within its discretion. See Moore, 849 S.W.2d at 351 n.1;
Sneed, 955 S.W.2d at 454.

For these reasons, portions of the proffered medical records contain
inadmissible statements. Because Appellant did not segregate these portions of the
records from those he sought to admit under Rule 803(4) as statements for a
medical diagnosis or treatment, the trial court did not err in excluding the records
in their entirety. See Willover, 70 S.W.3d at 847. We overrule Appellant’s third
issue.

CONCLUSION

We affirm the trial court’s judgment.

/s/ Meagan Hassan
Justice

Panel consists of Justices Wise, Spain, and Hassan.
Do Not Publish — Tex. R. App. P. 47.2(b).

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