Colton Quade Branning v. the State of Texas

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

COLTON QUADE BRANNING, § No. 08-24-00030-CR

Appellant, § Appeal from the

v. § 111th District Court

THE STATE OF TEXAS, § of Webb County, Texas

Appellee. § (TC# 2021CRB000425D2)

MEMORANDUM OPINION 1

A jury found Appellant Colton Quade Branning guilty of murder and assessed punishment

at 40 years’ confinement plus a $10,000 fine. Appellant raises two issues on appeal. First, he

contends there was “fundamental error” affecting his right to a fair trial because the trial court

erred by admitting evidence that he had been in prison, evidence of other crimes, and evidence that

he invoked his right to remain silent, and by failing to transcribe the video-recordings of his four

out-of-court declarations that were played for the jury. Second, he contends the trial court failed

to include an instruction on “mere presence” in the jury charge. Finding no error, we affirm.

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The appeal was transferred to this Court from the Fourth Court of Appeals pursuant to a Texas Supreme Court docket
equalization order. Accordingly, we apply the Fourth Court of Appeals’ precedent to the extent it conflicts with our
own. See Tex. R. App. P. 41.3.
I. BACKGROUND
Appellant does not challenge the sufficiency of the evidence to sustain his conviction. We

nonetheless provide a brief recitation of facts in the light most favorable to the verdict to provide

context for the determination of the issues presented on appeal. See Banda v. State, 768 S.W.2d

294 (Tex. Crim. App. 1989) (en banc) (“[A] brief recitation of the facts in the light most favorable

to the verdict is useful” even where the appellant does not bring a sufficiency challenge); see also

Tex. R. App. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as

practicable but that addresses every issue raised and necessary to final disposition of the appeal.”);

Woodberry v. State, No. 05-00-01823-CR, 2001 WL 1525906, at *1 (Tex. App.—Dallas Dec. 3,

2001, no pet.) (not designated for publication) (a lengthy recitation of the facts related to the

offenses is unnecessary where appellant does not challenge sufficiency of the evidence).

The grand jury indicted Appellant on one count of murder. The indictment alleged that, on

February 23, 2021, Appellant did then and there intentionally or knowingly cause the death of

Justin Heath Allen, by shooting him in the head. Appellant pleaded not guilty, and the case

proceeded to a jury trial. During the State’s case in chief, it presented 16 witnesses and over 100

exhibits. For the defense, Appellant presented testimony of a video photographer who took aerial

footage of the crime scene and admitted into evidence exhibits accompanying that testimony.

The evidence presented at trial showed that on the morning of February 23, 2021, an officer

with the Laredo Police Department (LPD) happened upon a dead body lying on the ground. Once

he saw blood, he radioed for back up and informed his supervisor. LPD officers assigned to

investigate collected shell casings from the scene, surveillance video of the surrounding area, and

a purported murder weapon found in a nearby trashcan. Eventually, LPD identified the body as

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Justin Heath Allen. Officers also identified a Dodge vehicle on the surveillance video of the scene,

and that vehicle was linked to Appellant.

The State also presented testimony of Brooklyn Lansford, a cousin of Appellant and

fiancée of Allen. She testified that she and Allen were living in Mississippi. She described that

days earlier, on February 13, 2021, Appellant had contacted her and Allen. He mentioned he had

a construction job in Texas and, if Allen wanted to join him, they could drive together to Laredo.

A couple of days later, after Allen left with Appellant, he texted Lansford, describing the

construction job as being “fake.” He complained that Appellant had gotten him involved in human

smuggling operations across the U.S.–Mexico border. Lansford further testified that, on February

21, Allen texted he had told Appellant he needed to return to Mississippi to be with his family.

Days later, it was discovered that Allen had been killed. Lansford told investigators to find

Appellant “because he either did it or he knows something.”

The jury found Appellant guilty of murder. Following the punishment phase, the jury

assessed punishment at 40 years’ confinement and a fine of $10,000. The trial court entered a

judgment of conviction in accordance with the jury’s verdict. Appellant filed a motion for new

trial which was overruled by operation of law. This appeal followed.

II. EVIDENTIARY AND TRIAL ERRORS
In his first issue on appeal, which includes several sub-issues, Appellant contends there

was “fundamental error” because he was deprived of his right to a fair trial. Aside from this bare

assertion, he does not state why any of the alleged errors rise to the level of fundamental error,

how the alleged errors in any way influenced the jury’s verdict, or how the alleged errors deprived

him of a fair trial. Furthermore, aside from citing to certain rules of evidence, Appellant’s brief

lacks legal arguments under each alleged error, and more generally, his brief is disjointed and

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difficult to follow. However, despite this lack of clear and concise arguments, we liberally construe

Appellant’s brief, discerning his argument as raising evidentiary complaints and other errors about

the conduct of the trial. To the extent Appellant argues otherwise, any other complaint is waived

by inadequate briefing. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise

argument for the contentions made, with appropriate citations to authorities and to the record.”).

As for discerned complaints, Appellant complains in two sub-issues that the trial court

erred in allowing the jury to hear testimony that he had previously been in prison and that he had

been arrested for possession of marijuana while Allen’s murder was being investigated. In a third

sub-issue, Appellant challenges the testimony of two witnesses, asserting the trial court erred in

admitting evidence of his arrest for marijuana possession while LPS was investigating the murder.

In his final two sub-issues, he complains the trial court admitted evidence that he invoked his right

to remain silent, and it failed to transcribe out-of-court declarations that were “played” for the jury.

We consider each sub-issue in turn.

A. Standard of review

The admission of evidence is generally reviewed under the deferential abuse-of-discretion

standard. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018). Failure to object to the

admission of evidence waives review of the matter. See Tex. R. App. P. 33.1(a)(1); Holmes v.

State, 248 S.W.3d 194, 200 (Tex. Crim. App. 2008). Furthermore, the failure to pursue a adverse

ruling on an objection also waives the complaint. See Tex. R. App. P. 33.1(a)(2); White v. State,

No. 08-23-00238-CR, 2024 WL 2002212, at *8 (Tex. App.—El Paso May 6, 2024, no pet.) (mem.

op., not designated for publication) (“To preserve an issue for appellate review, the complaining

party must make a timely, specific objection and obtain a ruling.”).

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However, in a criminal case, a court may “take notice of a fundamental error affecting a

substantial right, even if the claim of error was not properly preserved.” Tex. R. Evid. 103(e).

Fundamental error falls into two categories: (1) the denial of absolute, systemic requirements and

(2) the violation of rights that are “waivable-only.” Saldano v. State, 70 S.W.3d 873, 888

(Tex. Crim. App. 2002) (en banc). “Only rights that are ‘fundamental to the proper functioning of

our adjudicatory system’ are non-forfeitable.” Cruz v. State, 698 S.W.3d 265, 268 (Tex. Crim.

App. 2024). These rights are few. But courts do recognize they “include rights to counsel and jury

trial,” “a sentencing judge’s consideration of the correct range of punishment,” “a jury trial free of

judicial comments on the weight of the evidence,” and “appointment of an interpreter[.]” Id.

Here, Appellant has not cited to any authority applying fundamental error principles to the

unobjected-to evidence, and most courts have rejected similar arguments. See Holmes v. State, 248

S.W.3d 194, 200 (Tex. Crim. App. 2008); Robinson v. State, No. 01-19-00211-CR, 2020 WL

3393067, at *6–7 (Tex. App.—Houston [1st Dist.] June 18, 2020, no pet.) (mem. op., not

designated for publication) (refusing to elevate incurable jury argument to level of fundamental

error that would be appealable without having objected); Dowdy v. State, No. 03-01-00571-CR,

2002 WL 1987642, at *2–4 (Tex. App.—Austin Aug. 30, 2002, no pet.) (not designated for

publication) (refusing to analyze voir dire statements and admitted evidence under fundamental

error principles to remove need for objection).

Therefore, we analyze each of Appellant’s evidentiary and trial complaints to determine

whether the complaint was preserved for our review and, if so, whether the trial court abused its

discretion by admitting the complained-of evidence.

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B. Application

(1) Testimony that Appellant had been in prison

First, Appellant contends that evidence that he had been in prison was erroneously

admitted. He contends the evidence was “totally inadmissible.”

The evidence Appellant complains of came through Lansford’s testimony. Specifically,

Lansford was asked how Allen met Appellant and she replied, “when [Appellant] got released

from prison[.]” Lansford did not elaborate on why Appellant had been in prison. Defense counsel

objected on lack of foundation. The State pointed out that Appellant himself made a similar

statement in his interview, saying “I just got out of prison.” The trial court replied, “And we just

heard that yesterday.” Defense counsel did not obtain a ruling on the objection. When asked again,

Lansford stated “[w]hen [Appellant] got released from prison, he came to see me, and they met

because me and [Allen] were living together.” To this response, Appellant’s counsel lodged no

objection.

Although Appellant initially objected as to foundation, he neither obtained a ruling nor did

he object a second time when the witness repeated the same answer. Therefore, this complaint was

not preserved for our review. See Tex. R. App. P. 33.1(a)(2); White, 2024 WL 2002212, at *8.

We overrule the first two sub-issues of issue one.

(2) Evidence of Appellant’s marijuana possession

Next, Appellant challenges the testimony of two witnesses, as to both he asserts the trial

court erred in admitting evidence of his arrest for marijuana possession which occurred while LPS

was investigating Allen’s murder.

First, LPD Sergeant Luis O. Mata, Jr. testified he was the first investigator assigned to the

scene where Allen’s body had been found. He observed Allen was bleeding from the back of his

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head from what appeared to be a gunshot wound.2 When their investigation led to Appellant as a

person of interest, he was no longer in Laredo. LPD then issued a “BOLO” 3 for the purpose of

informing statewide law enforcement to be on the lookout for Appellant’s vehicle. Sergeant Mata

was again asked about the BOLO:

SEGREANT MATA: At that point, we [disseminated] a BOLO advisory. On that
specific day, we just tried to get as much evidence as we
could with the surveillance video; and then, maybe at about
10:00 p.m., we received information that [Appellant] had
been apprehended outside of Houston for a misdemeanor
possession of marijuana. [Emphasis added.]

DEFENSE COUNSEL: Objection. Your Honor, may we approach?

THE COURT: You may.
. . .

THE COURT: What’s your objection?

DEFENSE COUNSEL: Your Honor, this goes to the motion in limine; and as far
as the 404(b), a Class B of marijuana cannot be used.
What he is using–well, number one, it’s hearsay; number
two, it’s a prior bad act that occurred that they are
bringing in.

Basically, what he is saying, is that he was detained
because of the BOLO or whatever. He didn’t have to add
in the possession of marijuana. He is doing it–it’s being
done mainly to prejudice the jury against the Defendant
based on what the basis was for the detention. [Emphasis
added.]

The trial court overruled the objection.

Second, Eric Lopez, a Texas Ranger with the Texas Department of Public Safety, testified

he was tasked with finding Appellant’s vehicle that was somewhere in Houston heading to

2
The medical examiner pronounced Allen dead at 10:23 a.m. on February 23rd. After the autopsy, the medical
examiner determined Allen died from a gunshot wound to his head.
3
A “BOLO” is a radio communication to all officers to “be on the lookout.”

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Louisiana. The vehicle was located in the parking lot of a hotel, and Appellant was detained at the

hotel and placed into a patrol vehicle. Ranger Lopez said that before Appellant was placed in the

patrol vehicle, he was searched and marijuana and a large amount of cash was found on his person.

Ranger Lopez stated Appellant was then transported to the highway patrol division for an

interview. Defense counsel did not object to this testimony. 4

Appellant contends the trial court erred by admitting evidence that he had been arrested for

possession of marijuana while Allen’s murder was being investigated. Neither witness testified

that Appellant had been arrested. Both Sergeant Mata and Ranger Lopez stated only that marijuana

was in Appellant’s possession when he was detained at the hotel. Defense counsel’s precise

objection was to Sergeant Mata’s testimony that Appellant had been “detained because of the

BOLO or whatever. He didn’t have to add in the possession of marijuana.” Appellant has failed to

show the trial court erred in admitting the testimony.

Moreover, a party must object every time the allegedly inadmissible evidence is offered or

obtain a running objection to the admission of the evidence. Valle v. State, 109 S.W.3d 500, 509

(Tex. Crim. App. 2003). Any error in the admission of evidence is cured when the same evidence

comes in elsewhere without objection. Id. “Thus, a party may not complain on appeal about

improperly admitted evidence if the same or similar evidence is admitted without objection at

another point in the trial, either before or after the admission of the disputed evidence.” Farias v.

State, No. 08-23-00234-CR, 2024 WL 3349079, at *14 (Tex. App.—El Paso July 9, 2024, no pet.)

(mem. op., not designated for publication). We conclude that even if the trial court erred by

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Later, the State posed the following question to Sergeant Jonathan Castillo: “So, then he is taken in for, I believe
that the testimony said, for possession of marijuana–an ounce in his pocket–what, if anything, happens next?” Defense
counsel did not object to this question.

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admitting Sergeant Mata’s testimony, the alleged error was cured because Appellant did not object

to Ranger Lopez’s testimony.

We overrule the second sub-issue of issue one.

(3) Improper jury argument

In a third sub-issue, Appellant complains the State presented improper closing argument

where in the prosecutor implied he had committed other crimes. Specifically, the State argued:

They were in a gang doing criminal business together; yet, people get shot over
criminal business all of the time. Oh, wouldn’t we–wouldn’t we have more violent
crimes? [Defense counsel] knows the Rules of Evidence . . .

The trial court sustained defense counsel’s “improper argument” objection and instructed the jury

to disregard but denied the request for a mistrial.

On appeal, Appellant points to the State’s statement as an example of how evidence of

other crimes was admitted, but he does not explain how the trial court erred because his objection

was sustained and he does not assign error to the trial court’s denial of his request for a mistrial.

Therefore, because his objection was sustained and the jury instructed to disregard, Appellant’s

inadequately briefed argument presents nothing for our review. See Tex. R. App. P. 38.1(i); Blanco

v. State, No. 08-15-00082-CR, 2017 WL 604050, at *5 (Tex. App.—El Paso Feb. 15, 2017, no

pet.) (not designated for publication) (“When a party’s argument consists only of conclusory

statements without proper citation to appropriate authorities or lacks substantive analysis, the party

has inadequately briefed the case and presents nothing for our review.”).

We overrule the third sub-issue.

(4) Limiting instruction

Appellant’s next complaint contends that “[i]f a limiting instruction had been requested

and given,” the jury would have been instructed it could not consider the evidence to prove he was

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a bad person. He then provides what instruction should have been given if it “had been requested

and given.” Appellant did not further elaborate or develop his complaint.

When evidence is admissible for one purpose only, but not for another purpose, “the court,

upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.”

Arana v. State, 1 S.W.3d 824, 829 (Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (citing

Tex. R. Evid. 105(a)). The party seeking to limit the purpose for which evidence can be considered

has the burden to request that the jury be given a limiting instruction. Arana, 1 S.W.3d at 829

(“[I]n the absence of such request the court’s action in admitting such evidence without limitation

shall not be a ground for complaint on appeal.”).

Appellant did not request a limiting instruction, and, on appeal, he does not argue the trial

court should have sua sponte included such an instruction. See Pardue v. State, 252 S.W.3d 690,

698 (Tex. App.—Texarkana 2008, no pet.) (holding that because defendant failed to request a

limiting instruction when exhibit was admitted, he could not complain about its admission for all

purposes on appeal). Therefore, Appellant has failed to show the trial court committed error in not

submitting a limited instruction.

We overrule Appellant’s fourth sub-issue.

(5) Transcriptions of video evidence

In his next sub-issue, Appellant asserts four videos were played for the jury, but the

portions of the video heard by the jury were not transcribed by the court reporter. He argues that a

new trial should be granted “if the missing portion of the record is necessary to the appeal’s

resolution.”

“To complain of a court reporter’s failure to transcribe the audio portion of a videotaped

statement that was played to the jury during the guilt-innocence and punishment phases of the trial,

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the defendant must have preserved error by objecting before the trial court.” Francis v. State, No.

14-17-00958-CR, 2019 WL 5565970, at *15 (Tex. App.—Houston [14th Dist.] Oct. 29, 2019, pet.

ref’d) (mem. op., not designated for publication); see also Williams v. State, 937 S.W.2d 479, 486

(Tex. Crim. App. 1996) (appellant waived complaint because he did not object to court reporter’s

failure to take notes while videotape was played and he did not object at any stage of trial to court

reporter’s failure to record his videotaped statement). When the State tendered the exhibits for

admission into evidence, defense counsel stated, “no objection,” and never objected to the court

reporter’s failure to transcribe the audio portion of the videos. Accordingly, any error in not

transcribing the audio was not preserved.

We also disagree with Appellant’s characterization of the portions of the recordings as

“missing.” Appellant contends State’s Exhibit 151, a video-recording of Appellant’s interview

with Sergeant Castillo, was played for the jury, then repeatedly stopped, and started again.

Appellant contends the video is approximately three hours long and, according to him, the contents

of what the jury heard are not part of the appellate record because those portions were not

transcribed by the court reporter.

The video, which is part of the appellate record, was stopped at several points to allow the

State to ask clarifying questions of the witness. However, each time the video was paused, it was

re-started from the stopping point. The record reveals there were portions of the video not played

for the jury—a portion of the video showing Appellant eating, and portions where the State jumped

ahead to a time mark specified in the reporter’s record. Therefore, contrary to Appellant’s

contention that this Court must “guess” about the contents heard by the jury, the entire video with

few noted exceptions was heard by the jury and is not “missing” from the appellate record. The

other three exhibits are also part of the appellate record. State’s Exhibit 9 (a video-recording of

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Appellant’s interview with Ranger Lopez and another investigator), Exhibit 149 (a recording of a

telephone call between Appellant and Sergeant Castillo), and Exhibit 150 (an audio-recording of

Sergeant Castillo’s telephone interview with Appellant) were stopped at several points to allow

the State to ask clarifying questions. However, each time the recording was paused, it was re-

started from the stopping point.

Therefore, contrary to Appellant’s contention that this Court must “guess” about the

contents heard by the jury, these recordings were heard by the jury and are not “missing” from the

appellate record.

We overrule Appellant’s fifth sub-issue regarding the video exhibits.

(6) Appellant’s right to remain silent

Appellant’s final sub-issue asserts that there was evidence improperly introduced showing

that he invoked his right to remain silent. Specifically, Appellant points to Ranger Lopez’s

testimony when the State sought to introduce the video-recording of Appellant’s interview with

Ranger Lopez and another investigator:

THE STATE: Okay. Would you, and were you able to advise [Appellant] of his
rights and his rights to speak to you, as well as his right to remain
silent and the right to an attorney, and the right to have an attorney
appointed and waiving them before speaking to you?

RANGER LOPEZ: Yes.

THE STATE: And does the recording reflect that [Appellant] waived those rights?

RANGER LOPEZ: Yes.

Defense counsel did not object to the above questions or answers and stated “no objection” to the

admission of the video into evidence. After the video was played for the jury, Ranger Lopez was

asked what he did after Appellant invoked his right to counsel and Lopez replied, “Well, [] the

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interview ended, and I just followed up with several other tasks for the case itself.” Again, defense

counsel lodged no objection to the question or answer.

As a general rule, a defendant’s invocation of his right to remain silent, after he has been

arrested and received his Miranda warnings, may not be used against him at trial. See Dinkins v.

State, 894 S.W.2d 330, 356 (Tex. Crim. App. 1995) (en banc); Hardie v. State, 807 S.W.2d 319,

322 (Tex. Crim. App. 1991). On appeal, Appellant cites to Hardie as support for his argument that

his invocation of his right to remain silent was improperly admitted. Appellant’s reliance on

Hardie is misplaced. First, in Hardie, defense counsel objected to the jury hearing an audio portion

of a videotape where, after police asked the appellant to submit to an intoxilyzer, the appellant

stated he would have to wait until either his mother or his lawyer arrived. 807 S.W.2d at 320. The

officers told him they could not wait for anyone, and again asked him to submit to an intoxilyzer.

Id. The appellant again responded he had to wait for a decision from either his lawyer or his parents

and that he was not sure what his rights were. Id. The arresting officer proceeded to ask him to

answer some questions and the appellant then made incriminating statements. Id. This was all

recorded on videotape and played before the jury over appellant’s objections. Id.

Here, unlike in Hardie, before Appellant was asked any questions, he was advised of his

Miranda rights, including the right to counsel and to remain silent. After being advised of his

rights, Appellant was asked if he would be willing to answer questions. He said “yes” and that he

would tell the investigators if he “got uncomfortable and want[ed] an attorney.” Over the course

of approximately 90 minutes, Appellant answered questions. Toward the end of the recording,

Appellant stated he had told them “everything he [knew],” “that’s all I [have] to say about it at this

point,” “[garbled] no further questions,” and “I don’t know anything else, thank you.” Appellant

does not cite to any other authority or further develop his argument.

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Moreover, we conclude Appellant invited error. At trial, Appellant permitted the

introduction of the entire audio portion of the videotape into evidence, without objection. On

appeal, he now challenges his conviction as improper because he was heard to invoke his right to

remain silent. Appellant cannot complain of error he invited. See Overman v. State, No. 03-95-

00682-CR, 1997 WL 216973, at *6 (Tex. App.—Austin May 1, 1997, pet. ref’d) (not designated

for publication) (appellant permitted introduction of entire audio portion of videotape in evidence

and “now assails his conviction as improper because appellant was heard to invoke his right to

counsel and right to remain silent”; holding, appellant cannot now complain of his acquiescence

to the introduction of inadmissible evidence and “by allowing the jury to hear the entire audio

portion of the videotape, appellant waived his right on appeal to complain of its introduction”);

see also Merchant v. State, No. 14-96-00771-CR, 1998 WL 132908, at *4 (Tex. App.—Houston

[14th Dist.] Mar. 26, 1998, no pet.) (not designated for publication) (appellant contended

prosecutor improperly indicated to venire panel that her failure to testify could indicate a prior

criminal record and this penalized her for exercising her right to remain silent; holding appellant

waived any error because she did not object to these comments).

Accordingly, we conclude Appellant has failed to establish error regarding his right to

remain silent. We overrule the remaining sub-issue of issue one.

III. LIMITING INSTRUCTION ON “MERE PRESENCE”
In his second issue, Appellant asserts the trial court erred by denying his request for a jury

instruction on “mere presence.” During the jury charge conference, Appellant’s attorney requested

an instruction on mere presence:

DEFENSE COUNSEL: . .specifically on as far as the offense of murder based on
the evidence presented yesterday in the Defendant’s
case-in-chief. There is a–and my client’s statements that

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he made to Detective Castillo, that he was dropping
Justin Allen off for a drug deal; and, based on the ability
and availability of access from somewhere else, that if
the Court believes that in the State’s case-in-chief there
could be another party–there probably was somebody
else that could have done it–and my client could have
possibly been a witness or could have been present at the
time. So, because of that, we ask the Court to include a
mere presence instruction.

TRIAL COURT: It’s not a mere presence. That’s denied. What else?

In his appellate brief, Appellant quotes from a pattern jury charge on “party liability.” He

also cites to opinions that are not applicable here. See Sorto v. State, 173 S.W.3d 469, 475

(Tex. Crim. App. 2005) (appellant relied on his own statements to support his claim that trial court

erroneously refused to instruct the jury on the lesser-included offense of aggravated kidnapping);

Marable v. State, 85 S.W.3d 287, 295–96 (Tex. Crim. App. 2002) (en banc) (Womack, J.,

dissenting) (stating Court “must consider the general law for indictments, our application of this

law to indictments of principals and accomplices under former penal codes, and the application of

the law to indictments of parties under the present penal code” when “[t]he issue in this case is

whether a court’s charge to the jury may authorize conviction on the theory that the defendant was

criminally responsible for the conduct of another when the State did not plead that theory”).

Appellant does not argue, much less cite to any authority supporting an argument, that he

was entitled to an instruction on “mere presence.” Further, we conclude he was not entitled to the

instruction. The Court of Criminal Appeals has determined that a “mere presence” instruction is

an impermissible comment on the evidence and should not be included in a jury charge. Beltran

De La Torre v. State, 583 S.W.3d 613, 619, 621 (Tex. Crim. App. 2019) (holding mere presence

instruction was an improper comment on weight of the evidence because it was unnecessary to

clarify applicable law and drew jury’s attention to evidence supporting a particular party’s theory

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of the case); see also Kersey v. State, No. 08-20-00037-CR, 2021 WL 5860920, at *6 (Tex. App.—

El Paso Dec. 10, 2021, pet. ref’d) (not designated for publication) (citing to Beltran and holding

trial court erred by including “mere presence” instruction because instruction commented on

weight of the evidence because instruction “tended to draw the jury’s attention to . . . Appellant’s

theory that her mere presence at the scene was insufficient evidence to support her guilt”).

“When a defendant has no right to a particular instruction, the trial court does not err in

refusing to give the instruction.” Bell v. State, No. 02-14-00056-CR, 2015 WL 1792627, at *2

(Tex. App.—Fort Worth Apr. 16, 2015, no pet.) (mem. op., not designated for publication).

Because Appellant was not entitled to a “mere presence” instruction, the trial court did not err by

refusing to give the requested instruction. We overrule his second issue.

IV. IV. CONCLUSION

We affirm the trial court’s judgment.

GINA M. PALAFOX, Justice

February 14, 2025

Before Salas Mendoza C.J., Palafox and Soto, JJ.

(Do Not Publish)

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