Francisco Bazan v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00167-CR

FRANCISCO BAZAN, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 140th District Court
Lubbock County, Texas
Trial Court No. DC-2022-CR-1194, Honorable Douglas H. Freitag, Presiding

August 5, 2025
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.

Appellant Francisco Bazan appeals from his conviction for aggravated assault with

a deadly weapon, a second-degree felony enhanced to first-degree for punishment, for

which he received fifty years of confinement.1 By what we construe as a single issue,

Appellant argues the trial court erred by permitting testimony that his behavior was

1 See TEX. PENAL CODE ANN. § 22.02(a)(2).
“consistent with someone who has been intoxicated on either drugs or alcohol.” We

affirm.

BACKGROUND

On the afternoon of January 17, 2022, Delia Hernandez returned home to find

Appellant and another man called “Bird” drinking beer outside her fourplex. Later, she

heard them arguing near her driveway, with Bird pleading, “Why do you want to hurt me?

I’m an old man.” Hernandez instructed them to leave and threatened to call the police;

both men departed in opposite directions.

Minutes later, Hernandez drove to speak with Appellant’s sister about keeping

Appellant away from her property. As she turned onto a street, she heard Appellant yell

from an empty lot. When she looked, she saw him pick up his arm and throw a

sledgehammer through her passenger window, striking her in the back. Hernandez called

911.

Lubbock police officers Jordan Lee and Stephen Nagy were among the responding

officers. They interviewed Hernandez and observed the damage to the vehicle and injury

to Hernandez. She identified Appellant as the one who threw the sledgehammer.

Corporal Nagy testified he found Appellant with a bleeding head wound and

transported him to University Medical Center, where Appellant required restraint,

sedation, and multiple staples to close his wound.

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Outside the jury’s presence,2 Nagy was asked whether he believed Appellant was

intoxicated. He said, “it’s a possibility,” based on statements by Appellant’s family

members about alcohol consumption. However, Nagy lacked personal knowledge of

whether Appellant had consumed alcohol; he did not smell alcohol on Appellant’s breath

and agreed he had no “articulable facts to say that he was high or anything like that.”

Though no objection was posed by Appellant, the trial court determined that because

Nagy lacked articulable facts, testimony about intoxication would constitute speculation.

When trial resumed in front of the jury, Nagy described Appellant as “agitated and

worked up.” He also testified about observing blood on Appellant’s head. During cross-

examination, Appellant’s attorney questioned Nagy about head injuries and its effect on

behavior:

Q. And your experience also tells you when someone suffers a head wound,
that could affect their behavior, their demeanor and their lack of cooperation
and things of that nature; is that correct?

A. That is correct. Yes, sir.

Q. I mean, they can become disoriented, they could black out. It could be
a serious injury; is that right?

A. Yes, sir.

Q. And you don’t know how serious the extent was of his head injury when
we’re talking about [Appellant]; is that true?

A. That is correct.

2 Prior to trial, Bazan filed a motion in limine regarding extraneous offenses. Bazan explained that
this included references to his alleged intoxication. The trial court directed the parties to approach before
they presented evidence of such.

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Before the bench, the State again requested permission to ask Nagy about

Appellant’s intoxication, arguing defense counsel’s questions about head injuries “opened

the door.”3 The court declined due Nagy’s concession that he lacked personal knowledge

about whether Appellant was intoxicated but allowed Nagy to generally elaborate on

whether “other things” can cause behavioral changes; Nagy replied, “Alcohol, narcotics,

foreign substances.”

Later, Officer Lee testified. At a bench conference, the State notified the court it

intended to elicit testimony that Appellant’s behavior was consistent with somebody who

was intoxicated. Appellant objected on relevance and Rule 404 grounds. The State

argued the testimony was relevant to Appellant’s mens rea and admissible under Rule

404(b)(2). The trial court agreed, overruling Appellant’s objection but providing a limiting

instruction. Officer Lee testified that Appellant exhibited behavior consistent with

somebody intoxicated on drugs or alcohol.

On cross-examination, Appellant’s counsel also pressed Officer Lee about

alternative causes for confusion, emphasizing Lee’s lack of medical training regarding

head injuries. Lee acknowledged “it’s a possibility” Appellant was behaving that way

because of a head injury and agreed there could be “a medical explanation.”

3 “Voluntary intoxication does not constitute a defense to the commission of crime.”TEX. PENAL
CODE ANN. § 8.04(a). Evidence that a defendant is intoxicated cannot be used to show a lack of intent or
knowledge. Hawkins v. State, 605 S.W.2d 586, 589 (Tex. Crim. App. 1980); Baker v. State, 625 S.W.2d
840, 843 (Tex. App.—Amarillo 1981, no pet.).

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ANALYSIS

Appellant argues the trial court erred by admitting Officer Lee’s testimony that his

behavior was consistent with intoxication. He contends the evidence was inadmissible

as res gestae and harmed his defensive theory that head trauma prevented him from

forming the necessary mens rea. We disagree.

A. Appellant Opened the Door to the Admission of the Evidence

Evidence of a defendant’s crimes, wrongs, or other acts is generally inadmissible

to prove character conformity. TEX. R. EVID. 404(b). However, the evidence may be

admitted for other purposes, including to rebut a defensive theory that negates an element

of the offense. Irsan v. State, 708 S.W.3d 584, 616 (Tex. Crim. App. 2025). A party may

introduce such evidence if it “logically serves to make more or less probable an elemental

fact” or undermines defensive evidence related to an elemental fact. De La Paz v. State,

279 S.W.3d 336, 343 (Tex. Crim. App. 2009). We review the trial court’s decision to admit

extraneous bad acts under an abuse-of-discretion standard and will uphold the trial

court’s ruling if it is correct on any applicable legal theory. Irsan, 708 S.W.3d at 616.

Appellant’s defensive theory placed his mental state squarely at issue. He elicited

testimony from Corporal Nagy that head wounds can affect behavior, demeanor and lack

of cooperation, cause disorientation, and result in serious injury. Appellant reinforced this

theory through additional evidence, including a jail call where he indicated no memory of

the events and body camera footage showing confusion at arrest and the hospital.

On cross-examination, Appellant’s counsel also pressed Officer Lee about

alternative causes for confusion, emphasizing Lee’s lack of medical training regarding
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head injuries. Lee acknowledged “it’s a possibility” Appellant was behaving that way

because of a head injury and agreed there could be “a medical explanation.” Discussion

of this evidence continued through closing arguments, where Appellant’s attorneys

repeatedly invoked Appellant’s head injury to argue he lacked intent to commit the

offense.

On the other hand, evidence of voluntary intoxication does not support a defense

that Appellant lacked intent. TEX. PENAL CODE ANN. § 8.04; see Hawkins v. State, 605

S.W.2d 586, 589 (Tex. Crim. App. 1980); Baker v. State, 625 S.W.2d 840, 843 (Tex.

App.—Amarillo 1981, no pet.). By placing his mental state into question in an effort to

undermine the element of intent, Bazan’s defensive theory permitted the State to

introduce evidence that his behavior and confusion was caused by something that is not

fatal to the elements of the offense. See Irsan, 708 S.W.3d at 616; De La Paz, 279

S.W.3d at 343. Accordingly, the trial court did not abuse its discretion by permitting the

State to introduce evidence that Bazan’s behavior was consistent with somebody who

was intoxicated. See Irsan, 708 S.W.3d at 616. Such evidence does not run afoul of

Rule 404(b). See id. We overrule Bazan’s issue.

B. Preservation Issues Bar Additional Challenges

Appellant also suggests the evidence lacked foundation and violated Rule 404(b)

notice requirements. These arguments were not preserved. When the State proffered

Lee’s testimony, Appellant objected only on relevance and general Rule 404(b)

grounds—not foundation, personal knowledge, or inadequate notice. See TEX. R. APP.

P. 33.1(a)(1)(A); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015); see also

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Trejo v. State, 594 S.W.3d 790, 799 (Tex. App.—Houston [14th Dist.] 2019, no pet.)

(complaint on appeal must comport with specific objection at trial). Having failed to raise

these specific objections, Appellant cannot challenge them on appeal. Taylor v. State,

109 S.W.3d 443, 449 n.25 (Tex. Crim. App. 2003) (“Where the same evidence or

argument is presented elsewhere during trial without objection, no reversible error

exists.”); Dixon v. State, No. 07-16-00058-CR, 2022 Tex. App. LEXIS 268, at *11–12

(Tex. App.—Amarillo Jan. 13, 2022), opinion corrected on denial of reh’g, No. 07-16-

00058-CR, 2022 Tex. App. LEXIS 2696, *1 (Tex. App.—Amarillo Apr. 25, 2022, pet.

denied).

Appellant similarly argues the court inconsistently excluded Nagy’s similar

testimony but admitted Lee’s. But the record clearly explains the distinction. The court

excluded Nagy’s testimony because he admitted he lacked articulable facts to support an

intoxication opinion, relying only on hearsay from family members. When Lee testified,

however, Appellant objected on relevance-based grounds, not personal knowledge.

Moreover, the State’s case rested primarily on Hernandez’s eyewitness testimony

that she saw Appellant throw the sledgehammer through her window. The intoxication

evidence, while potentially prejudicial, does not materially affect the strength of this

identification testimony or undermine confidence in the verdict—especially in light of

Appellant’s alternative explanation for his mental state at the time. See Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998) (verdict should not be overturned if court

has fair assurance error did not influence jury or had but slight effect).

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CONCLUSION

The trial court did not abuse its discretion in admitting evidence pertaining to

possible intoxication. We overrule Appellant’s issues and affirm the conviction and

sentence.

Lawrence M. Doss
Justice

Do not publish.

Quinn, C.J., concurs in the result.

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