Mark Anthony Briseno v. the State of Texas

In the

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-24-00177-CR
________________

MARK ANTHONY BRISENO, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the 221st District Court
Montgomery County, Texas
Trial Cause No. 20-01-00059-CR
________________________________________________________________________

MEMORANDUM OPINION

A Montgomery County grand jury indicted Mark Anthony Briseno for murder

after he shot and killed his girlfriend, Daria Khoussinov. A jury convicted Briseno

of murder, rejected his sudden passion special issue, and assessed punishment at life

plus a $10,000.00 fine. The trial court sentenced him accordingly. In nine issues,

Briseno challenges the trial court’s judgment and complains: in issues one and two,

that the trial court’s exclusion of expert testimony about his mental health during

guilt/innocence violated his constitutional right to present a defense; in issue three,

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that the trial court reversibly erred by excluding expert testimony under Rule 404

during guilt/innocence, when it determined the testimony was irrelevant; in issues

four and five, that the trial court committed jury charge error by failing to instruct

the jury on the lesser-included offenses of manslaughter and criminally negligent

homicide; in issues six through eight, that the trial court abused its discretion by

admitting various photographs; and in issue nine, that the evidence was legally

insufficient to support the jury’s guilty verdict. As discussed below, we affirm the

trial court’s judgment.

I. Background

On December 31, 2019, the evidence showed that Briseno retrieved his assault

rifle from his closet and fired ten shots at his girlfriend, Khoussinov, in their

bedroom after they fought over how much money he spent on a bottle of beer. Eight

of those ten shots hit Khoussinov. The evidence showed that Briseno left

Khoussinov lying on the floor in their bedroom, took his firearm, and went to a

neighbor’s home, where he admitted shooting Khoussinov. A police officer arrived

and began CPR, but Khoussinov died at the scene. The evidence also showed that

witnesses observed Briseno agitated and emotional after the shooting.

Before trial, Briseno did not raise insanity as a defense or file the requisite

paperwork to do so. During guilt/innocence the trial court excluded evidence of

Briseno’s mental health which Briseno sought to introduce through a defense expert,

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Dr. John Matthew Fabian and Briseno’s treating counselor, Melany Morrison.

During punishment, witnesses were allowed to present evidence of Briseno’s mental

health issues and low IQ. In punishment, the jury rejected the sudden passion special

issue, then assessed punishment at life plus a $10,000 fine.

II. Trial Evidence1

A. Testimony of Kimberly Kyle

Kimberly Kyle testified that she lived on North Lynx Trail, a cul-de-sac in the

Woodforest neighborhood of Montgomery County, Texas. On New Year’s Eve

2019, she was home with her mother and nephew watching a movie around 7:30

p.m., and by that time, fireworks were already going off sporadically. She explained

that about 8:30 or 8:45 p.m., while watching the movie, she heard “something that

was not sounding like fireworks to me” and thought it did not sound right.

Kyle testified that she had heard gunshots previously. When she first heard

the noise, Kyle believed someone was “outside celebrating and shooting a gun.” She

thought she heard six or seven gunshots. She explained how the sound of the

gunshots differed from the fireworks and noted that the gunshots happened in “quick

succession” that she characterized as “bam, bam, bam, bam.”

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We describe the evidence adduced at trial in this section. For purposes of
clarity and organization, we outline other relevant information and details of the trial
court’s rulings in our discussion of the respective issues below.
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Kyle said that she looked out a window to see if anyone was outside and

planned to call police. She said she saw a man come out of a house “shaking his head

and he looked upset, and he was talking on his cell phone and then, he fell down on

his knees and looked distraught, quite distraught.” Kyle testified that the house she

was looking at had red pillars and a red door. Although she had seen the people who

lived there before, she did not know their names. Kyle estimated that the time

between hearing the shots and seeing the man exit the house was about “a minute

and a half to two minutes.” She described the man as having a “fairly light” build,

and it seemed that he lived at the house he exited from but did not recognize him in

the courtroom.

Kyle said that she did not watch him long through the window, “maybe two

minutes,” and she thought he probably had a fight with his girlfriend. Since nobody

was outside shooting a gun in the air, she decided not to call 911. Kyle explained

that she did not approach the man, because she thought “they probably had a

breakup” and did not want to intrude. Soon after, though, Kyle heard sirens.

B. Testimony of Zane Hoffmeyer

Deputy Zane Hoffmeyer with the Montgomery County Precinct 3 Constable’s

Office testified. In December 2019, he worked as a patrol officer for the

Montgomery County Sheriff’s Office. Hoffmeyer testified that on New Year’s Eve

2019, he was a rookie deputy and worked the night shift.

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Hoffmeyer testified that this call came into dispatch, and he remembered

hearing an assault firearm was involved, which meant it was a “Priority 1” call, so

he responded with lights and sirens. This was the first murder call that he ever

responded to. As he drove to the scene, Hoffmeyer received many updates from

dispatch. He explained that this incident involved two 911 callers, and sometimes

information “can get a little mixed up,” because you have two dispatchers relaying

information into “one call,” which results in “a lot of crossover information[.]” From

the time he received the call to when he arrived was about ten minutes. He knew

there was a shooting, and someone was possibly hurt, so his priority was to find the

victim and render aid.

Hoffmeyer was the first officer to arrive, and he was alone. In 2019, they did

not have body cameras, but he had a dashcam in his patrol car. The dashcam recorded

his audio, which was admitted into evidence. When he arrived at the scene of the

incident, his priority was finding the victim; he went inside the home, but nobody

was there to help him clear the house. Hoffmeyer knocked on the door and

announced, “Sheriff’s Office,” but nobody responded. Hoffmeyer explained that

based on the call notes, he believed the shooter was at a neighbor’s house.

He testified that his priority was to secure the scene and find the victim.

Hoffmeyer cleared the rooms and checked the bedroom last, where he found the

female victim. He found her slumped against the dresser and leaning towards the

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bed. The lights were off, and given the furniture’s configuration in the room, he

could not see her when he first walked in; he had to walk around the bed and look

into the back corner to see her.

Hoffmeyer’s first thought was to assess her injuries, and she appeared to be

bleeding heavily, so he was concerned whether she was alive. He tried to lay her flat

and lifted her shirt to assess her injuries, since dispatch informed him she was shot

with a crossbow. Hoffmeyer explained that he believed she was shot but not with a

crossbow, because there were no arrows in the room.

He explained that he pulled her along the carpet and laid her flat in an open

space to render aid. Hoffmeyer spoke to her to see if she was conscious, but she did

not respond. He did not observe any weapons on her or around her. Once Hoffmeyer

had her on a flat surface and lifted her shirt, he observed multiple bullet holes, which

he described for the jury. He explained that he observed shell casings fired from a

rifle, which was another thing that made him believe this was a shooting. He

performed CPR for a “[c]ouple minutes” before EMS came in and took over.

Hoffmeyer testified that she never responded, and he could not tell that she had a

pulse. Hoffmeyer said his hands were bloody, because he did not have time to put

gloves on. He washed his hands in a sink at the residence, and in hindsight, he would

not do that again.

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Hoffmeyer’s dashcam video, played for the jury, showed him arriving at the

scene. After he exited, the audio continued to record, and Hoffmeyer was heard

entering the residence and attempting to render aid. The 911 call detail records that

came through as Hoffmeyer responded to the call were also admitted into evidence

and shown to the jury during his testimony. Hoffmeyer confirmed that he did not

have any interactions with Briseno that night and that his only job was to render aid

to Khoussinov.

C. Testimony of Sara Bowker

The State called Sara Bowker to testify. Bowker testified that in 2019, they

moved to the Woodforest neighborhood. She said that in December 2019, they had

lived on North Lynx Trail for about six months. Her husband is a firefighter and

works shifts of two days on then four days off. As she began testifying, a photograph

of the cul-de-sac was admitted and shown to Bowker; she identified her home and

the home of Briseno and Khoussinov.

On December 31, 2019, Bowker was pregnant with her first child. She was

home with her parents, Natalie and Tom, that night, while her husband worked. She

remembered that they watched the sitcom, Friends. Bowker explained that they

turned the television volume up to drown noise from the fireworks, because one of

her dogs was “petrified of fireworks.” Bowker noted that the fireworks started “when

it went dark” outside, and around 7 p.m., they started going off consistently.

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Bowker said that Briseno, Khoussinov and Khoussinov’s daughter all lived in

a home together on the street. Bowker stated that she and her husband were not good

friends with them but characterized the relationship as “friendly.” She identified

Khoussinov and her daughter in a photograph that was admitted and shown to the

jury. Bowker described Khoussinov as “very reserved, very quiet.” She added that

Briseno and Khoussinov worked at H-E-B.

Bowker denied hearing gunshots that night. She said that about 9 p.m.,

someone knocked on the door. When she answered the door, Briseno was standing

there wearing a white tank top and pajama pants. She stated that he was “very out of

breath, very frantic[,]” and she saw something was wrong; she thought he was drunk

but did not smell alcohol. He had his hand on his head and leaned on the doorframe.

Bowker explained that Briseno asked if he could talk to her husband. She told

Briseno her husband was not home, so Briseno asked to speak to his wife, and

Bowker had to tell him that she was his wife. According to Bowker, Briseno knew

that her husband was a firefighter. She agreed that her husband had EMS training.

Since Bowker’s husband was not there, Briseno was looking for her, but Briseno did

not realize who she was, so there was some confusion. She attributed Briseno’s not

making sense to the broken conversation caused by his heavy breathing and “panic.”

Although he was emotional, Bowker did not see any tears.

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Bowker testified that the weapon was up on the side of her house and fell.

When she saw it on the doormat, she realized it was “an automatic” gun. She

estimated that Briseno was on her porch about a minute before she saw the weapon

fall. According to Bowker, at that point, Briseno said, “Something bad happened. I

did something really bad. Something bad happened.” Briseno identified himself as

the bad actor. She said that Briseno never pointed the weapon in her direction nor

threatened anyone.

Then, Bowker asked her dad to come to the door and guided him to the

weapon on the ground while simultaneously guiding Briseno into her house.

Bowker’s father grabbed the weapon and locked it in the trunk of his car. She felt it

was important to separate Briseno from the weapon, because she did not know if he

was a danger to her, her parents, or himself. As he stood inside Bowker’s foyer,

Briseno was still “very out of breath” and almost “hyperventilating.” Bowker noted

that her mother is a nurse, so her mother asked Briseno if he needed water, because

she thought he might be having a panic attack or was sick.

Bowker testified that she asked Briseno what was going on. Briseno

responded, “Something bad happened. I did something really bad. She’s dead. I

killed her. She’s dead.” According to Bowker, she immediately asked Briseno,

“Where is her daughter?” Briseno told Bowker the daughter was in San Marcos with

her father. Bowker explained that Briseno was physically rocking. Bowker testified:

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You could see he was visibly angry at himself. I feel like it wasn’t about
her dying. He was really mad at himself and he kept getting up and he
was walking around our room. He would get in a ball in the ground. In
the kitchen, he was like, Oh, my gosh. My dad is going to kill me. My
dad is going to kill me. Prior to that, I guess he called his dad . . . and
his dad called the sheriff’s department.

Bowker stated that he was pacing and appeared uninjured. She said that all Briseno’s

concern was directed at himself rather than Khoussinov, and “he was visibly upset

that his dad was going to be mad at him.” She claimed she had seen someone behave

like Briseno before when they were “very angry.”

Bowker estimated that Briseno was in her house for ten or fifteen minutes.

During that time, she asked him as many questions as possible. She stated that

Briseno told her they were fighting about a bottle but did not say what kind, so she

assumed it was alcohol. Briseno said it was about a bottle he bought for his brother,

who lived overseas at the time; Bowker assumed it was an expensive bottle, so it

boiled down to finances and how much Briseno spent on it.

Bowker testified that her mother called 911 from another room. When the

officer arrived, Bowker went and told the officer that Briseno was in her house, and

she thought Khoussinov was in one of the bedrooms. Bowker then returned to her

house, where her parents were with Briseno. She said that Briseno “was freaking

out” and thought that the police would do something to him, so he asked Bowker’s

parents to walk him down the driveway to meet the police.

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D. Testimony of Thomas Miller

Thomas Miller, Bowker’s father, also testified. He recently retired and moved

to the Woodforest neighborhood near his daughter. In December 2019, he lived in

Maryland, but Miller and his wife were visiting Montgomery County to visit

Bowker. They arrived on December 27 and planned to leave on New Year’s Day.

Like his daughter, Miller testified that he, his wife, and daughter were

watching Friends that night. His son-in-law, a fireman, was working. Miller recalled

that they turned the television up “really loud” since one of his daughter’s dogs was

anxious about the fireworks.

They heard a knock on the door about 9 p.m. then clarified that he thought it

was the Ring doorbell. Miller said that when Bowker cracked the door, he saw her

talking to someone from the back of the living room. Initially, Miller was

unconcerned and just “assumed it was one of her friends at the door.” Miller

explained that changed when Bowker told him, “Dad, I need you now. Come here.

Come here now. I need you.”

Miller testified that as he walked to the door, Bowker opened it, and he

observed Briseno standing there. He then identified Briseno in court. Miller said that

night, Briseno wore a sleeveless t-shirt and pajama pants, and Miller heard,

“Something bad has happened.” As Briseno entered the house, Miller noticed an

assault rifle across the doormat. He stated that his “first thought was, I have to secure

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this weapon and make sure it doesn’t get back into his hands.” So, Miller grabbed

the weapon and locked it in the trunk of his rental car.

Miller testified that he moved quickly, because he was “fearful” for his wife

and daughter and wanted to get back inside the house. Once inside, he saw that

Briseno, his wife, and daughter were in the living room, so he walked back there.

Miller stated that Briseno “was saying things like, I can’t believe this happened.

Something bad has happened. I have done something bad. At the point where he

said, I shot [Khoussinov], I turned to my wife and said, Go call 911 now.” Miller

said that he was concerned about someone potentially needing help but had his wife

call, because he believed it would be safer if he stayed with Briseno. His wife “went

to the front bedroom to make that call.” He did not smell any alcohol on Briseno and

did not see any tears coming out of Briseno’s eyes. Miller heard Briseno say that he

shot Khoussinov.

Miller testified that his wife reported on the 911 call that the weapon was a

crossbow. He explained that his wife was behind them, so he did not believe she had

a clear view of what was there. Miller was unfamiliar with assault rifles and did not

know what a shoulder stock was. They did not try to determine whether it was an

AK-47 or crossbow, they were simply trying to keep everyone safe and secure the

weapon.

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While his wife called, Miller, Bowker, and Briseno were in the kitchen/living

room area, and Briseno “was very upset.” Miller testified that they tried to keep

Briseno calm. They could see the police lights approaching. Miller explained that

Briseno became more agitated as time went on because he knew the police were

coming, and once Briseno saw the lights, “he became very agitated.” At one point,

Miller believed that Briseno would leave the house, “but just kind of moved around

the hallway.” Miller confirmed that he noticed a difference in Briseno’s behavior as

the police lights approached, as he became more agitated and “knew they were

approaching. They were coming for him.” He also described Briseno’s demeanor as

“shocked, upset, irritated, nervous, scared.” Miller did not notice Briseno breathing

heavily or hyperventilating.

Eventually, Miller and his wife walked Briseno to the policeman in the cul-

de-sac, with Miller on one side and his wife on the other side. At that time, Miller

did not know how many times Briseno shot Khoussinov or how long it had been

since he shot her.

Miller testified that Briseno never brandished the weapon in his family’s

direction nor threatened his family. During Miller’s testimony, portions of video

from State’s Exhibit 11 were played for the jury, and he described what occurred as

the video played. Miller confirmed that he and his wife tried to keep Briseno as calm

as possible and assisted with a peaceable arrest.

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E. Testimony of Michael Berry

Michael Berry testified that he is a patrol sergeant with the Montgomery

County Sheriff’s Office and has been with them since 2013. On New Year’s Eve of

2019, Berry was a crime scene investigator (“CSI”). As a CSI, Berry said that they

assist the homicide violent crimes detectives with documenting and processing crime

scenes for evidence. Berry described his training and experience as a CSI.

Berry was the lead CSI on this case, but he was not alone at the crime scene

and named two other CSIs, including his lieutenant, who were there. Berry said that

he helped the State create a demonstrative scale model of the scene for use in the

courtroom. He documented the crime scene with photographs and used accurate

measuring devices to measure the location of different items of evidence, which he

documented on an XY axis in his notes. He referred to those notes and believed the

demonstrative model accurately represents the location of the physical evidence

from the bedroom that night. Placards in the courtroom had numbers on them that

corresponded to how he marked the evidence that night.

Berry testified that the demonstrative model showed the location of

Khoussinov and the approximate position of her body when he arrived, and she was

on her back with her left hand above her head. He confirmed there was a blood trail

around the corner of the bed that went towards the dresser. He noted there was an

open “large gun safe” in the closet of the bedroom.

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He explained that the height of the bed would have been at Khoussinov’s hip

if she were standing. He said that the bed was on her right, the exterior wall was to

her left, and the dresser was behind her. According to Berry, if a man stood in the

closet doorway holding an assault rifle, and a woman stood between the bed and the

dresser, for the woman, there was “[n]ot really anywhere to go.” Also, he said that

if, hypothetically, she was threatening with the “Jabberwocky” beer bottle shown in

the photographs, she would only have one shot with it.

During his testimony, State’s Exhibit 145, a photograph of the dresser

containing multiple bullet perforations was admitted into evidence and shown to the

jury, which he discussed. Berry testified that certain placards shown on the

demonstrative model corresponded to Exhibits 112 through 121, which were ten

fired shell casings. Berry stated he took photographs of Briseno at the scene, which

were admitted into evidence. At least one photograph showed a small spot of

“apparent blood” on Briseno’s thumbnail, but Berry agreed that his hands were not

obviously bloody. Other than a scrape on Briseno’s shoulder, Berry did not recall

him having any other obvious injuries.

Additional photographs of the Briseno home were also admitted into

evidence, which Berry discussed for the jury. He testified that he collected journals

as evidence and copied every page of them. Another photograph showed a beer

bottle on the table. Photographs of Khoussinov’s body at the scene were also

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admitted and shown to the jury. According to Berry, these photographs accurately

showed what he found at the scene, including evidence of her injuries and attempted

medical intervention. Berry stated that he “documented several apparent gunshot

wounds . . . from the top of her leg up through her torso and one on her arm.” Berry

also discussed photographs admitted into evidence that showed ten bullet casings

collected at the scene. According to Berry, a photograph showed that one placard

corresponded to the Jabberwocky bottle of beer in the room. Other photographs

admitted during Berry’s testimony and published for the jury showed additional

items of evidence he collected, including photographs of the dresser with multiple

bullet holes, items covered in blood, bullet fragments, and projectiles. Some

perforations, fragments, and projectiles were found outside the house seemingly

consistent with bullets being fired from the inside location and going through walls.

Photographs of the inside of the master bedroom closet were also admitted, which

Berry discussed; they showed firearms, magazines, and ammunition.

Photographs of the rifle removed from the neighbor’s car, a magazine and

ammunition recovered with it were also admitted and shown to the jury, which Berry

described. Berry testified that as part of processing the scene, he removed the

magazine from the weapon, which contained unfired cartridges. Berry explained that

the photographs showed unfired hollow point projectiles in the magazine. Berry

noted that in one photograph, he was showing the chamber, and he recalled “that

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there was an unfired cartridge in the chamber of the firearm.” Berry relayed that

there were twenty live rounds in the weapon he recovered from the trunk, including

nineteen in the magazine and one in the chamber. He stated that adding the ten fired

shell casings collected in the bedroom to that twenty, you get thirty rounds, and this

AK-47 assault rifle magazine had a thirty-round capacity. The weapon and magazine

with the unfired cartridges were also presented to the jury during Berry’s testimony.

During cross-examination, defense counsel questioned Berry about the

Jabberwocky bottle found in the bedroom, and Berry agreed that a bottle can be used

to injure someone. He said he tested the mouthpiece of the bottle for DNA but did

not test it for latent prints. He also stated one photograph taken showed video games

in the home, including the first-party shooter game, Call of Duty, and the third-party

shooter game, Grand Theft Auto. Berry said that he did not observe any bruising on

Briseno’s shoulder consistent with holding a firearm there. Berry explained that the

bullets that hit the neighbor’s unoccupied house and the fence struck low, but he

could not say what the initial trajectories were. He added that he could not tell where

someone stood based on where casings landed.

Berry explained that the AK-47 was a “[r]elatively heavy rifle[,]” and he

estimated it weighed about twelve pounds. He said the magazine added about

another pound, so the total weight would be about thirteen or fourteen pounds. Berry

stated that the firearm had a “sliding stock[,]” and the stock “swivels out so that it’s

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longer.” Berry estimated the length of the firearm with that stock was close to forty-

six inches, which added about a foot to the weapon. He also collected a bolt-action

rifle and shotgun from the safe.

Berry discussed blood evidence seen on a light switch and on the closet door,

and he noted he did not collect DNA evidence from the light switch but did from the

frame on the inside of the closet door. According to the 911 call notes, “reportee’s

son and his girlfriend live there[,]” and “[r]eportee’s son shot the girlfriend.” Based

on that, even if they collected all the DNA in the house and submitted it, it would

not tell them anything, as he would expect both of their DNA to be on everything in

the house.

F. Testimony of Mark McKelvy

Mark McKelvy testified that he is a firearms examiner trainee at the Houston

Forensic Science Center. In 2019 and early 2020, McKelvy was a private contractor

for the ATF assigned to the Montgomery County Sheriff’s Office. He specified that

he was a technician for the National Integrated Ballistic Information Network

(“NIBIN”). He explained that “NIBIN is a database for fired cartridge cases and, in

some cases, bullets. It takes 2D and 3D images of cartridge cases and bullets and

compares them to a designated region by that laboratory or office.” McKelvy said

that it was fair to compare NIBIN to the AFIS fingerprint database or CODIS DNA

database. Given the right training, equipment, and experience, McKelvy said it is

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possible to take an unknown spent shell casing or bullet fragment, compare it to

knowns, and match them.

In 2019, as a technician, McKelvy test-fired firearms and ensured they were

safe to operate and safe to test-fire. He verified whether there were working safeties,

performed test-fires, and then entered them into the NIBIN database. He explained

that test-firing involved going to a designated shooting room in the laboratory and

shooting into a water tank designed to catch a bullet.

McKelvy testified that he was asked to work on this case. He received a

firearm and ten fired cartridge cases. He confirmed that the case was assigned a

unique identifying number, which the examiner receives with the items when he

forwards it. McKelvy said that here, he was asked to perform a test-fire and did so;

the weapon fired when he pulled the trigger. He produced a known, spent shell

casing from the rifle that he entered in the NIBIN system. He explained that the

casing was then stored at the assigned case number for the examiner to use later.

According to McKelvy, the firearm measured 34.5 inches in the extended position

and 25.25 inches in the collapsed position. McKelvy stated that he fired the gun from

the extended position.

G. Testimony of Patricia Bui

Patricia Bui testified that she is a firearm and toolmark examiner with the

Montgomery County Sheriff’s Office. Bui explained that “when a gun is used in an

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incident,” law enforcement “can submit the firearm, the fired bullet, the fired

cartridge case,” and she tries to determine whether that was the firearm used during

the incident. She described her experience and training for the jury. In 2024, she

began working for the Montgomery County Sheriff’s Office in their firearms lab,

which is accredited. Bui specified that the Montgomery County lab could make

firearms comparisons and is equipped with NIBIN.

Bui outlined her duties as a firearms examiner, including performing function

testing, comparative analysis, and acting as the NIBIN coordinator for Montgomery

County. She said it was possible, under the right circumstances, to take unknown

ballistic evidence recovered from a crime scene and compare it to known ballistic

evidence, then match fired casings to a particular firearm.

Bui testified that she was asked to perform firearms function testing and

comparative analysis in this case. She received the following evidence from CSI

Berry: three firearms; unfired cartridge cases; a fired bullet and fragments. Bui also

received a package of test-fires performed by McKelvy. When she compared the

items to the test-fires, she could reach opinions about the weapon that fired some,

but not all, of them. Bui said she documented her findings in a report and a

photograph outlining the evidence with the conclusions, which were admitted into

evidence.

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She explained that she determined the AK-47 firearm was functional with no

malfunctions detected during testing. Bui noted she performed three trigger pull tests

and that the single-action trigger pull required 7.25 pounds, 7 pounds, and 7.25

pounds to discharge when she performed the three tests. She noted that this was a

semiautomatic rifle, which only shoots one round per trigger pull. Bui said that she

experienced recoil when she tested the weapon, which would make it harder for a

shooter to control if shooting one-handed.

Bui testified that the safety selector on the firearm worked properly, so when

the safety was engaged, the shooter must depress or release the safety before the

firearm discharged. If the gun was stored with the safety off, it would not need to be

disengaged, and once a round is chambered, it does not take much effort to pull the

trigger. She explained that with the stock, the weapon was designed to be shot from

the shoulder, which adds stability; however, it also has a pistol grip and can be shot

like a normal pistol. Bui did not know if one must remove the magazine before

collapsing the stock to place it in the pistol grip configuration. The accuracy at a

particular distance depends on the “proficiency of the shooter.”

The evidence submitted for analysis included one fired bullet, three fired

bullet jacket fragments, and four lead fragments. Bui explained that she was only

able to identify the fired bullet as being fired from the AK-47. She compared the

pieces of evidence, but she was unable to eliminate them or identify them as being

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fired from the weapon. Bui said that she also received ten bullet casings, which were

all suitable for comparison. She stated that upon comparison, she identified those

casings as being fired from the AK-47. She told the jury that the AK-47 assault rifle

was a deadly weapon.

H. Testimony of Jeremy Thomas

Jeremy Thomas testified that he currently works for FTI Consulting,

Technology Section in digital forensics. He previously worked as an investigator for

the district attorney’s office, and in 2023, after thirty years in law enforcement, he

retired. Thomas has testified as a digital forensics’ expert on many occasions before.

Thomas testified that he worked on this case. Thomas described the process

of downloading cell phones. Thomas confirmed they obtained a search warrant for

Briseno’s cell phone, and a password was provided. He provided the numbers

associated with Briseno’s cell phone and Khoussinov’s cell phone. Thomas said that

he used Cellebrite to download Briseno’s phone and “obtained a logical

extraction[,]” which he described as “just what you see on the phone.” Thomas ran

a timeline report for December 30 and 31, 2019, that included different types of data

from the phone in time order. He said they picked that timeframe because it was the

day of the incident and the day before. The timeline report was admitted into

evidence during Thomas’s testimony. They ran a different report containing a

conversation that Briseno and Khoussinov were a part of, which was also admitted

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into evidence. Messages between Briseno and Khoussinov were read into the record.

Thomas explained that there was no evidence of conflicts or fighting in those

messages.

During Thomas’s testimony, three photographs of Briseno shooting the

murder weapon retrieved from his phone were admitted into evidence and shown to

the jury. Thomas said the photographs showed Briseno holding and shooting the

same gun used the night of the incident, which he observed when he went to the

scene that night. Thomas stated he did not know when those photographs were taken,

although they could obtain that information, which he would try to do. During a

recess, Thomas ascertained the dates for two of the photographs and told the jury

that State’s Exhibit 214 was taken on January 9, 2018, and Exhibit 216 was taken on

January 4, 2018. He could not find the information for State’s Exhibit 215.

On cross-examination, the defense had Thomas go through the timeline report

with the different messages, contacts, and activities on Briseno’s phone. Thomas

testified that there appeared to be Safari searching on Briseno’s phone until about

8:50 p.m. on New Year’s Eve. Then, Briseno’s phone makes an outgoing call to

“Dad” at 9:01 p.m., which lasts six minutes and twenty-eight seconds. He confirmed

that the last time Briseno did anything on the phone was at 9:01 p.m. Thomas did

not see a call to 911 from Briseno’s phone on December 31, 2019.

23
I. Testimony of Dr. Kathryn Pinneri

Kathryn Pinneri testified that she is a board-certified forensic pathologist and

described her medical education and training for the jury. She is the Director of

Montgomery County Forensic Services in Conroe, Texas, and their office oversees

and performs autopsies ordered by the justice of the peace in Montgomery County.

Pinneri outlined what an autopsy consists of, including the internal and external

examinations; she also takes photographs and x-rays.

On January 1, 2020, Pinneri performed Khoussinov’s autopsy. Pinneri

testified that she prepared a report of the autopsy she performed on Khoussinov. The

trial court admitted autopsy photographs over defense objection, which they

addressed previously outside the jury’s presence. According to Pinneri, apart from

the injuries noted in her autopsy report, Khoussinov was healthy.

Pinneri began by discussing the x-rays. Pinneri discussed the x-rays admitted

into evidence and pointed out projectile fragments spread through Khoussinov’s

body, including her left chest, abdomen, left chest area, and lumbar vertebrae, for

the jury. Pinneri stated that Khoussinov had “extensive fracturing of the left arm near

the shoulder[,]” and “extensive fracturing of both sides of the pelvis[.]”

Pinneri identified eight different gunshot wounds (GSWs), which she noted

in the autopsy report. She could not say the order in which the wounds occurred.

Pinneri used the autopsy photographs to describe the gunshot wounds, the damage

24
they did to Khoussinov’s body, and the paths of the projectiles. Pinneri explained

how various photos showed entrance versus exit wounds and how she distinguishes

those.

Pinneri testified that GSWs 1, 6, 7, and 8 were survivable. She explained that

GSWs 2 and 3 were close together on the left breast and upper chest area. Pinneri

noted that GSW 2 fractured multiple ribs, and caused “extensive damage to the

heart,” which she characterized as “pulpification” that obliterated large portions of

the heart. It then went through the left lung, left side of the diaphragm, the stomach,

and fractured two more ribs. She stated that GSW 2 was not survivable. Pinneri noted

the exit wound for GSW 2 and identified it in photographs. She said that the path of

GSW 3 was “almost identical” to GSW 2. Pinneri explained that GSW 3 likewise

fractured ribs, “pulpifies the heart[,]” and perforates multiple other internal organs,

like the left lung, diaphragm, and stomach. She opined that GSW 3 was painful and

not survivable. GSW 4 entered the front of the body near the right breast, passed

through the lung, heart, and liver, transected the aorta and left kidney, perforated the

stomach and spleen, then exited her lower back. Ultimately, she opined that GSWs

2, 3, and 4 were fatal in and of themselves.

Pinneri described recovering projectile fragments and collecting them for

firearm examiners. Pinneri testified that all wounds traveled front to back; some

wounds were downward, some straight through, and one was slightly upward. She

25
conveyed that all Khoussinov’s wounds were consistent with being shot with an

assault-style weapon from ten to twelve feet away. She stated that an AK-47 assault

rifle was a deadly weapon capable of causing serious bodily injury or death, and

firing an AK-47 at someone is an act clearly dangerous to human life. Pinneri opined

that the cause of death was multiple gunshot wounds to the torso, left arm, and left

leg, and the manner of death was homicide.

Pinneri explained during cross-examination that she did not find any firearm

residue or see any stippling, so the shooter was more than two to three feet away.

She did not know what order the shots were fired.

J. Testimony of Michael Wright

The defense called Michael Wright, who testified that he is an investigator for

the Montgomery County District Attorney’s Office and previously worked for the

Montgomery County Sheriff’s Office. Wright testified that he was familiar with and

able to inspect the AK-47 assault rifle involved in this case. He described this gun

as a “Soviet style” weapon.

Wright test fired the rifle and made a video of him doing so, which was

admitted into evidence and played for the jury. The video showed that he fired the

weapon ten times in less than seven seconds, which Wright said was not unusual.

Wright explained that each time he fired the weapon, he shot ten rounds, because

that was the number of shots fired during the commission of the offense. Wright test

26
fired the weapon indoors and outdoors. He explained that in the video, he fired the

weapon with the shoulder stock extended in a hip-flair position. Although the

weapon was not designed to be fired from the hip, it can be done effectively. Wright

believed that it would be unusual for someone to have bruising from recoil if the

rifle were fired properly with the stock extended. According to Wright, if ten shots

were fired with the rifle with eight hitting the target, that would be effective fire, and

he considered that managed recoil.

K. Additional Witnesses

During guilt/innocence two friends and Briseno’s family members testified

about his nonviolent character. These witnesses included friend Evan Fritz, who was

Briseno’s friend and coworker at H-E-B from 2018 through 2019. He also knew

Khoussinov from working at H-E-B. Fritz testified that Briseno did not have violent

behavior or nature. Bianca Arbello, another friend of Briseno’s testified. Arbello

said that she had known Briseno for seventeen years, and they met in middle school

then attended high school together. Arbello stated that Briseno was “very sweet,

generous, very courteous[,]” and “[n]onviolent.”

Christopher Briseno, the defendant’s older brother, testified. 2 He said that

Briseno is his youngest brother, and they “are pretty close.” According to

2
For purposes of clarity, we refer to Briseno’s family members by their first
names.
27
Christopher, he, Briseno, and their other brother, Eric, share an interest in craft beer.

Christopher stated that he believed Briseno was nonviolent. He agreed, though, that

Briseno pulled the trigger and did not believe that someone else shot Khoussinov

eight times. Christopher believed that such a violent act was inconsistent with

Briseno’s nonviolent nature.

Eric Briseno testified that he is Briseno’s oldest brother. He currently lives in

Magnolia, near The Woodlands, but in 2019, he lived in Norway but planned to

move back around the time this happened. Eric said that he and Briseno have “always

been close[.]” According to Eric, Briseno was nonviolent. That said, he believed

Briseno held the rifle that killed Khoussinov.

Tommy, Briseno’s father, testified. He said that he has three sons, Eric,

Christopher, and Mark. Tommy shared that Briseno, Khoussinov, and her daughter

lived together in the home in Woodforest. Tommy said that Briseno and Khoussinov

were together about two years. He noted that they closed on their house in August

2019, and in September 2019, he and Briseno shopped for an engagement ring

online.

Tommy testified he received a call at 9:01 p.m. from Briseno on New Year’s

Eve 2019. Tommy was home with his wife and mother when he received the call,

which he answered. He explained that Briseno was “crying and frantic,” and he could

not understand parts of what Briseno said, “because it was screaming and crying.”

28
Tommy claimed he had never heard Briseno sound like that before. Tommy learned

the source of frustration when Briseno told Tommy what happened. Tommy stated

that Briseno said, “I shot Daria.” He explained that during the six-minute call, he

tried to get information from Briseno, and it seemed like “he was trying to say

something,” but Tommy “couldn’t tell what it was.” According to Tommy, “It was

a lot of crying and I couldn’t understand what all he was saying[.]” Briseno

eventually hung up, but Tommy told him, “Stay put. Stay there.” Tommy said that

he immediately called 911.” He agreed that after receiving his son’s call, his

emotions were all over the place.

After he called 911, Tommy drove to Briseno’s house. When Tommy arrived,

his son was already under arrest. Tommy met with the detectives, provided his

information, and did what he could to cooperate. According to Tommy, Briseno is

“not a violent person.” He explained that he was unaware of Khoussinov being

violent and knew her to be kind, respectful, a good mom, and a hard worker.

Cynthia Briseno also testified for the defense. Cynthia said that she lives with

her husband, Tommy, and with Briseno. On New Year’s Eve 2019, she lived with

Tommy and her mother-in-law. Cynthia discussed a series of text messages and

stated that she invited Briseno over for New Year’s Eve to eat, but he declined since

he had to work the next day. She explained that later that evening, her husband

received a phone call, and she observed that he was “scared,” and “nervous.” Cynthia

29
and her mother-in-law were also scared and did not know what was going on but

believed there may have been a car accident. She stated that Tommy called the police

then went to Briseno’s house, while she stayed with her mother-in-law. According

to Cynthia, Briseno had a reputation for being nonviolent.

L. Other Evidence

Two different 911 calls were played for the jury. The first was from Natalie

Miller, who was visiting her daughter, Sara Bowker, a resident on the same street at

265 North Lynx Trail. She relayed that a neighbor showed up at her daughter’s house

with a “crossbow” and said that he hurt his girlfriend, but the caller did not know

what he had done to her. She reported that his name maybe was “Mark.” Natalie said

that the man dropped the crossbow on the front porch, and her husband picked it up

and secured it in their car, because they weren’t sure what he would do. The 911

operator said that the police were already on the way, because the man’s father also

called 911 to report it. The caller did not know if he shot his girlfriend with the

crossbow. Natalie reported that her husband was still inside with the man, and at one

point, the man was trying to leave. The second 911 caller was Briseno’s father,

Tommy. He provided the address of 253 North Lynx Trail and requested an

ambulance and police; he reported that there was a shooting at that location, and his

son’s girlfriend was injured. Tommy reported that his son, Briseno, told him that he

shot his girlfriend, and they had been arguing. Tommy said his son was “frantic,”

30
and he did not know what he would do. Tommy relayed that the shooting happened

within the last five minutes but did not know what Briseno shot her with.

III. Expert Testimony and Mental Health Evidence

During a pretrial hearing, Briseno conceded that he had not filed the requisite

“notice of intent” to use the insanity defense and that “we do not intent [sic] to say

he was insane at the time of the offense.” Nevertheless, the defense argued that

evidence of Briseno’s mental health was relevant to his intent at the time of the

offense under Texas Code of Criminal Procedure article 38.36(a). The defense

sought to have two expert witnesses testify during guilt/innocence, Dr. John Fabian

and Melany Morrison. The State asserted that under article 38.36, to be relevant

during the guilt phase of trial, the evidence of mental health must (1) negate the

“intentionally or knowingly” mens rea (i.e., to negate intent), and (2) “pass muster

under Rule 403.” The State contended evidence of Briseno’s mental health did not

do so. Briseno responded that to convict him of murder, the State must prove he did

so “intentionally or knowingly[,]” and if the defense “can show a lower mental state,

which would reduce his criminal culpability, we should be able to say, [o]kay.

Maybe he didn’t do it intentionally. Maybe he was reckless. Maybe this happened

with criminal negligence.” The trial court determined they would have to approach

at the appropriate time and address it in context.

31
The trial court conducted two hearings pertaining to these witnesses, their

qualifications, and the admissibility of their testimony. Briseno’s counsel asserted

they wanted to introduce evidence of his mental health, which it claimed impacted

the mens rea in this case. In addition to citing multiple cases, Briseno argued that to

deny him the opportunity to defend himself violates the United States Constitution

whether that is the Due Process Clause, the Fourteenth Amendment, or compulsory

process of the Confrontation Clause under the Sixth Amendment. The defense also

contended that the Constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense. Briseno claimed that if he was not

allowed to rebut an element the State had to prove, it impacted on his ability to put

on a defense.

We address the details of these hearings and the trial court’s rulings in our

discussion of issues one and two below.

IV. Jury Charge and Verdict

The trial court denied Briseno’s request to instruct the jury on the lesser-

included offenses of manslaughter and criminally negligent homicide. The jury

convicted Briseno of murder as alleged in the indictment. After rejecting the sudden

passion special issue in punishment, the jury assessed punishment at life plus a

$10,000 fine.

32
V. Issue Nine: Sufficiency of the Evidence

In issue nine, Briseno complains that the evidence is insufficient to support

the jury’s guilty verdict, “because there is no evidence Appellant acted intentionally

or knowingly or with the unlawful intent to cause serious bodily injury.” In essence,

he contends that his statements and behavior were inconsistent with an intent to

cause death or serious bodily injury. We address this issue first, since if meritorious,

it would entitle him to rendition and judgment of acquittal. See Benavidez v. State,

323 S.W.3d 179, 181 (Tex. Crim. App. 2010) (explaining appellate courts render

judgment of acquittal only if trial court’s ruling amounts to de facto acquittal or

appellate court determines evidence was legally insufficient to support

conviction); O’Reilly v. State, 501 S.W.3d 722, 726 (Tex. App.—Dallas 2016, no

pet.) (addressing legal sufficiency issues first, because if meritorious, court would

render judgment of acquittal).

A. Standard of Review and Applicable Law

In evaluating legal sufficiency of the evidence, “we consider the evidence in

the light most favorable to the verdict and determine whether, based on the evidence

and reasonable inferences therefrom, a rational juror could have found the essential

elements of the crime beyond a reasonable doubt.” Garcia v. State, 667 S.W.3d 756,

761 (Tex. Crim. App. 2023) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Metcalf

33
v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). Under the Jackson standard,

we defer to the jury’s responsibility to fairly resolve conflicting testimony, weigh

the evidence, and draw reasonable inferences from basic facts to ultimate

facts. See Hooper, 214 S.W.3d at 13 (citation omitted); see also Edwards v. State,

635 S.W.3d 649, 655 (Tex. Crim. App. 2021) (citation omitted). As factfinder, the

jury is the sole judge of the weight of the evidence and witnesses’ credibility, and it

may believe all, some, or none of the testimony presented by the parties. Metcalf,

597 S.W.3d at 855 (citations omitted). We do not reweigh the evidence or determine

the credibility of the evidence, nor do we substitute our judgment for the

factfinder’s. See McPherson v. State, 677 S.W.3d 663, 664 (Tex. Crim. App. 2023);

Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). “Each fact need not

point directly and independently to a defendant’s guilt, as long as the cumulative

force of all the incriminating circumstances is sufficient to support the

conviction.” Balderas v. State, 517 S.W.3d 756, 766 (Tex. Crim. App.

2016) (citation omitted); see also David v. State, 663 S.W.3d 673, 678 (Tex. Crim.

App. 2022) (citations omitted) (explaining that appellate courts consider the

“combined and cumulative force of all the admitted evidence in the light most

favorable to the verdict”).

In our sufficiency analysis, we must identify the essential elements of the

crime that the State must prove; in doing so, “we examine ‘the hypothetically correct

34
jury charge for the case.’” Dunham v. State, 666 S.W.3d 477, 482 (Tex. Crim. App.

2023) (citing Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011); Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). A hypothetically correct

charge “(1) accurately sets out the law, (2) is authorized by the indictment, (3) does

not unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and (4) adequately describes the particular offense for

which the defendant was tried.” Id. (citing Ramos v. State, 407 S.W.3d 265, 269

(Tex. Crim. App. 2013)) (other citation omitted). “The ‘law as authorized by the

indictment’ includes the statutory elements of the offense and those elements as

modified by the indictment.” David, 663 S.W.3d at 678–79 (quoting Curry v. State,

30 S.W.3d 394, 404 (Tex. Crim. App. 2000)).

A person commits murder if he “intentionally or knowingly causes the death

of an individual;” or if he “intends to cause serious bodily injury and commits an act

clearly dangerous to human life that causes the death of an individual.” Tex. Penal

Code Ann. § 19.02(b)(1)–(2). Texas Penal Code section 6.03 defines culpable

mental states. See id. § 6.03. “A person acts knowingly, or with knowledge, with

respect to a result of his conduct when he is aware that his conduct is reasonably

certain to cause the result.” Id. § 6.03(b). “A person acts intentionally, or with intent,

with respect to the nature of his conduct or to a result of his conduct when it is his

conscious objective or desire to engage in the conduct or cause the result.” Id. §

35
6.03(a). A specific intent to kill can be inferred from the use of a deadly weapon,

here a firearm. See Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004) (“Intent may also be inferred from circumstantial evidence such as acts,

words, and the conduct of the appellant.”); Wilkerson v. State, 881 S.W.2d 321, 324

(Tex. Crim. App. 1994) (concluding jury could infer appellant’s intent to kill from

how he handled his weapon, the pressure needed to fire the weapon, the distance

from which he fired, the injury he inflicted, and his flight from the scene); Vuong v.

State, 830 S.W.2d 929, 934 (Tex. Crim. App. 1992) (quoting Godsey v. State, 719

S.W.2d 578, 580–81 (Tex. Crim. App. 1986) (“‘The specific intent to kill may be

inferred from the use of a deadly weapon, unless in the manner of its use it is

reasonably apparent that death or serious bodily injury could not result.’”)). A

firearm is per se a deadly weapon. See Tex. Penal Code Ann. § 1.07(17)(A).

B. Analysis

Here, the indictment alleged that “Briseno, on or about December 31, 2019,

. . . did then and there, intentionally or knowingly cause the death of an individual,

namely: Daria Khoussinov, by shooting her with a firearm,” or that he “did then and

there intend to cause serious bodily injury to Daria Khoussinov, . . . and did cause

the death of [Khoussinov] by intentionally and knowingly committing an act clearly

dangerous to human life, to wit: shooting the complainant with a deadly weapon,

namely a firearm[.]” So, under a hypothetically correct jury charge, Briseno

36
committed murder if he intentionally or knowingly caused Khoussinov’s death by

shooting her, or if he intended to cause serious bodily injury and committed an act

clearly dangerous to human life by shooting her, resulting in her death. See id. §

19.02(b)(1)–(2); see also Dunham, 666 S.W.3d at 482; Malik, 953 S.W.2d at 240.

Briseno challenges the evidence supporting the requisite culpable mental state

of intentionally or knowingly and points to his panic and distress after the shooting

as evidence that he did not have the requisite intent. See Tex. Penal Code Ann. §

19.02(b)(1)–(2). Each fact need not point to Briseno’s guilt, as long as the

cumulative force of the evidence and reasonable inferences does. See David, 663

S.W.3d at 678; Balderas, 517 S.W.3d at 766. Briseno’s argument ignores the other

evidence in the record and the deference we afford the jury in its fact-finding role to

weigh that evidence and draw reasonable inferences therefrom. See Edwards, 635

S.W.3d at 655; Metcalf, 597 S.W.3d at 855; Hooper, 214 S.W.3d at 13; see also

McPherson, 677 S.W.3d at 664.

While we agree that multiple witnesses described Briseno’s distress after the

shooting, other evidence supports a reasonable inference by jurors that his conduct

was intentional or knowing. See Guevara, 152 S.W.3d at 50; Wilkerson, 881 S.W.2d

at 324; Vuong, 830 S.W.2d at 934. The evidence supporting this inference of

Briseno’s intentional or knowing culpable mental state includes the following: (1)

Briseno had to open a gun safe and retrieve his firearm; (2) he may have had to

37
disengage the safety; (3) Khoussinov was cornered in their bedroom; (4) at least

seven pounds of pressure was required to depress the trigger and fire; (5) he fired

ten rounds and hit her eight times, three of which were individually fatal; (6) he shot

from relatively close range; (7) he had to manage the firearm’s recoil; (8) he left her

lying on the floor; and (9) he did not call 911. See Guevara, 152 S.W.3d at 50;

Wilkerson, 881 S.W.2d at 324; Vuong, 830 S.W.2d at 934. Viewing all the evidence

in the light most favorable to the jury’s verdict, we conclude the jury could have

reasonably inferred that Briseno had the requisite intentional or knowing mental

state, and the evidence was legally sufficient to support his conviction for murder.

See Jackson, 443 U.S. at 318–19; Garcia, 667 S.W.3d at 761. We overrule issue

nine.

V. Issues One and Two: Constitutional Right to Present a Defense

In issues one and two, Briseno complains that the trial court violated his

constitutional right to present a complete defense by excluding evidence of his

mental health during guilt/innocence, specifically from forensic psychologist and

neuropsychologist Fabian and from licensed professional counselor Morrison. See

U.S. CONST. amend. V, VI, XIV; Tex. Const. art. I, § 19, art. I, § 10. In issue one he

complains that Fabian’s testimony regarding Briseno’s mental health was relevant

to negate mens rea and excluding this evidence impacted his right to present a

38
defense. In issue two, he asserts that the trial court erred by excluding Morrison’s

testimony about his mental health, which impacted his right to present a defense.

A. Relevant Background, Daubert Hearings, and Trial Court’s Rulings

1. John Fabian

In a hearing on the admissibility of Fabian’s testimony outside the jury’s

presence, Fabian testified that he has a doctorate in clinical and forensic psychology

as well as a juris doctorate, although he does not practice law. The State stipulated

to his qualifications to render certain opinions, and his CV was admitted for purposes

of the hearing.

Fabian explained he was familiar with relevant case law regarding his ability

to testify about the “mens rea elements[.]” Fabian testified that two cases addressed

his ability to testify as an expert in Texas and cited Jackson v. State, 160 S.W.3d 568

(Tex. Crim. App. 2005), and Ruffin v. State, 270 S.W.3d 586 (Tex. Crim. App.

2008). According to Fabian, he has testified in “few to several cases” in Texas courts

trying to rebut the mens rea element.

Fabian explained that the defense contacted him in late 2022 to examine

Briseno “related to his mental state at the time of this alleged offense and to assist in

conceptualizing the case from that point of view as to mental state defenses and

potential mitigating circumstances that the jury could consider,” and to address “heat

of passion or sudden passion issues.” In evaluating Briseno, Fabian reviewed the

39
following information: police reports; witness statements; dashcam videos; officer

videos from the scene; Briseno’s interrogation video; Briseno’s mental health

records; various letters; 404(b) and prior bad acts evidence from the prosecution; the

prosecutor’s interview with Briseno’s ex-girlfriend; and other collateral witness

testimony. He testified that he based his opinion on the totality of the information he

reviewed, in addition to his educational background and forensic background.

Fabian opined that Briseno has several psychiatric diagnoses related to mental

illness, including “other specified depressive disorder, other specified trauma and

stressor related disorder, which is relevant to some symptoms or features of PTSD,

post-traumatic stress disorder.” He also testified that Briseno “has evidence of other

specified personality disorder with borderline features[,]” and “evidence of an

alcohol use disorder and an unspecified neurodevelopmental disorder, . . . related to

a disorder of early brain development.” Fabian said those mental health factors

impacted his opinion about whether on December 31, 2019, Briseno had the

conscious objective or desire to engage in conduct or to knowingly engage in

conduct or intend the results of his conduct.

Generally, in terms of how those diagnoses affect someone’s ability to

perceive a situation, Fabian explained that “there are a combination of psychiatric

and neuropsychiatric symptoms,” and “there is a combination of borderline

personality features” that typically involve a “history of deficits in relationships, so

40
volatility in relationships, emotions, reactions, difficulties with, at times, anger

impulsivity and the impulsivity can be seen in different areas.” He noted that these

individuals generally “may experience issues related to feelings of abandonment”

and feeling more sensitive with their emotions than the average person, “[s]o,

sensitivity to rejection, sensitivity to abandonment can be debilitating to an

individual.” He also testified that regarding sensitivity to criticism and rejection,

individuals “in more serious cases, would have potential evidence of a dissociative-

type episode that they could have a snap or rage component where they may have

an out of mind/body type experience[.]” He stated that these factors impacted his

opinion about whether Briseno acted with the requisite mens rea, although he did

not explain how they did so for Briseno specifically. Fabian instead spoke in

generalities and terms of “may” and “can be.” According to Fabian, “they can,

essentially, snap and have a rageful event that they lack insight of conscious

awareness.” Fabian opined that a dissociative-type episode directly relates to the

required mens rea element that the defendant must have at the time of the offense.

Regarding Briseno, Fabian testified it was consistent with dissociation and said,

“There was a void, and there was confusion, attempts to make meaning of what

happened.” He noted Briseno’s dialogue with others, his continued confusion, and

“lack of real knowledge, conscious awareness of certain aspects of that moment of

what occurred.”

41
During cross-examination, the State asked Fabian what witnesses he talked to

about Briseno’s state of mind on the night of the offense. Fabian said that he

reviewed the police video and spoke with Briseno about his recollection. He stated

that he interviewed Briseno twice—on January 29, 2023, and on March 11, 2023.

Fabian testified that he reviewed and summarized law enforcement records,

including witnesses like Natalie Miller, Sara Bowker, Thomas Miller, and Tommy

Briseno but did not feel the need to follow up further with them. That said, he

conceded they all described Briseno’s state of mind after the murder. Likewise,

Fabian revealed that the video he reviewed in the back of the car and Briseno’s in-

custody interview occurred after the murder. Fabian testified that he did not talk to

anyone who spoke to Briseno or spent time with him that day before the shooting.

At the time of the hearing, Fabian stated that he had not prepared a report but

prepared “a note summary without an opinion.”

The State also asked whether all Briseno’s diagnoses negated mens rea, to

which Fabian responded with a question, “What is the mens rea intent you are trying

to prove?” He then explained that Briseno does not know what happened at that

moment, so in his opinion, “there’s evidence of a dissociative state, then that would

be relevant to his intent at that moment.” Fabian opined that “Briseno’s ability to

form intent at that moment was compromised in a dissociative rage and there was

evidence of the [e]ffect of alcohol and he has evidence of brain dysfunction.” Fabian

42
agreed that it made Briseno volatile, angry, impulsive, sensitive to rejection, snappy,

and rageful.

The State argued that this case was like Cortez v. State, in which Fabian

offered testimony of a dissociative state to negate intent or knowledge in a murder

case, but the Austin Court of Appeals held that testimony did not negate intent. See

No. 03-18-00751-CR, 2020 WL 6495107 (Tex. App.—Austin Nov. 5, 2020, no pet.)

(mem. op., not designated for publication). The State asserted that the Austin Court

reasoned that Fabian’s testimony was “general” and “did not, specifically, provide

any context or any information to the Court that would negate any sort of intent in

this case.” It contended that the evidence is a way to excuse the defendant’s behavior

in this case rather than being “put forward to negate mens rea, intent or knowledge.”

The State noted that Fabian was hired to address sudden passion and potential

mitigation, which was appropriate for punishment, not guilt, under applicable case

law.

The defense countered that Fabian’s testimony of what he found could directly

relate and rebut mens rea. It argued that if the Court found it could negate mens rea

and lead to a lesser-included offense, the evidence comes in. The Defense argued

that the State conceded to Fabian’s qualifications under Rules 702 and 705, so if the

evidence directly relates to or rebuts mens rea, then the court performs a 403

balancing test. The defense argued it hoped to get to the lower mental state of

43
“recklessly” and because under Ruffin v. State, his state of mind is relevant in a

murder case, it should be able to offer professional testimony about his state of mind.

The defense also argued that Fabian relied extensively on Briseno’s mental health

record between 2013 and 2019, and there is evidence in this case that at the time of

the offense, Briseno did not remember the details of the shooting. The defense also

stated Briseno’s behavior after the fact is important, claiming it reflected someone

who was confused, dissociated, and upset.

Regarding a lesser included offense, the State argued that there was no

testimony about a reckless state of mind, and there was no fact issue put forward,

particularly by the expert, that would raise a lesser included offense in this case. The

defense responded that if any evidence could justify a lesser included charge, then it

should be considered. The trial court did not rule immediately and instead considered

the case law the parties provided but ruled later that day Fabian could not testify

during guilt/innocence.

The next day, the defense officially “called” Fabian to testify, and the State

again objected that the testimony was irrelevant evidence of diminished capacity.

The trial court sustained the objection and excluded Fabian’s testimony during

guilt/innocence.

44
2. Melany Morrison

In a separate hearing outside the jury’s presence to determine the admissibility

of her testimony, Morrison testified that she is a licensed professional therapist. She

described her educational background, including receiving a master’s degree in

Marriage and Family Therapy in 2005. Morrison noted she was on the Mobile

Assessment Team (“MAT”) that traveled in four counties to emergency rooms and

ICUs to assess whether a person needed to be discharged to hospitalization or if they

could go home. She saw thousands of patients as part of that team. Morrison testified

that Briseno was her client. She explained that she provided records to Briseno upon

his request and in response to a grand jury subpoena but recently located additional

records from 2013 in a shred pile, which they discussed during the hearing.

Morrison explained that Briseno’s first meeting on January 23, 2013, was an

intake meeting set up through H-E-B’s Employee Assistance Program (EAP).

Briseno reported “suicidal” feelings. Although this concerned her, she determined

he did not have a plan, intent, or the means to do it; so, he did not meet the criteria

for hospitalization. She noted that a couple of days later, on Friday, January 25, 2013,

Briseno called and reported having “homicidal” thoughts. Morrison again

determined that he did not meet the criteria for hospitalization, but she took it

seriously.

45
Morrison described their next appointment on January 31, 2013, in which

Briseno said that he “walked out of work.” She noted that he felt “overwhelmed at

work,” he had “trouble tolerating large crowds[,]” and became anxious. Morrison

said that they addressed coping skills and setting goals. Morrison saw him February

2013, then he did not return until September 2013, when he reported feeling “snappy

and irritable.” They discussed him having an external locus of control and taking

more personal responsibility.

He resumed visits with her in 2015 and completed a new intake form.

Morrison noted in October 2015 that he still suffered from an “adjustment disorder;”

they also discussed managing stress. She testified that in November 2015, Briseno

expressed concern about how others perceived him.

Morrison testified that in January 2019, Briseno reported that he saw a

psychiatrist who diagnosed him with “soft bipolar,” and she noted that was not a real

diagnosis but determined he received a Bipolar II diagnosis. Her last visit with

Briseno was on January 29, 2019, about a year before the shooting, and he presented

as “dysphoric,” which she explained meant something was not quite right. Briseno

also relayed that he was in a new relationship with a new lady who had a daughter.

When asked whether Briseno’s noted disorders and diagnosis could impact

his ability to be aware of the consequences of his actions, Morrison answered, “I

can’t speculate to that.” When asked again about someone’s awareness with these

46
disorders, she responded that “everybody is different.” She also testified that one’s

ability to recall was not connected with being bipolar. Morrison denied ever being

afraid of Briseno and could not speculate on what happened. Morrison stated that

Briseno did not meet the criteria for hospitalization, and even on his worst day,

“there was no hospital that would take him.” She testified that she had no idea what

Briseno’s mental state was the day of the murder.

After Morrison testified, the defense contended that Morrison treated Briseno

before the shooting, and she was never afraid of him, which was relevant under Rule

401. The State noted Morrison’s testimony that she believed he was not a candidate

for hospitalization and that she had no idea about Briseno’s state of mind the day of

the murder. The State objected to Morrison’s testimony being admitted during

guilt/innocence. The trial court ruled Morrison’s testimony was irrelevant during

guilt/innocence and would not come in at that phase. Morrison’s records were

admitted for purposes of the record.

B. Standard of Review and Applicable Law

We review a trial court’s ruling admitting or excluding evidence of a

defendant’s mental illness for an abuse of discretion. See Jackson, 160 S.W.3d at

574. “A trial court abuses its discretion if its decision lies outside the zone of

reasonable disagreement.” State v. Heath, 696 S.W.3d 677, 688–89 (Tex. Crim. App.

2024) (citations omitted). We do not substitute our decision for the trial court’s if

47
the decision lies within the zone of reasonable disagreement. See id. at 689; Resendiz

v. State, 112 S.W.3d 541, 544 (Tex. Crim. App. 2003).

In murder prosecutions, “the state or the defendant shall be permitted to offer

testimony as to all relevant facts and circumstances surrounding the killing . . .

together with all relevant facts and circumstances going to show the condition of the

mind of the accused at the time of the offense.” Tex. Code Crim. Proc. Ann. art.

38.36(a). Texas does not recognize a diminished capacity defense other than

insanity. See Mays v. State, 318 S.W.3d 368, 381 (Tex. Crim. App. 2010); Ruffin,

270 S.W.3d at 593; Jackson, 160 S.W.3d at 573. “The defendant’s right to present a

defense generally includes the due process right to the admission of competent,

reliable, exculpatory evidence to rebut any of those elements.” Ruffin, 270 S.W.3d

at 594. A trial court need not admit any expert testimony concerning appellant’s

mental illness during the guilt stage if it does not directly rebut his culpable mens

rea. See Mays, 318 S.W.3d at 382; Ruffin, 270 S.W.3d at 596. Even if the evidence

directly rebuts a defendant’s culpable mental state, it must also meet Rule 403’s

requirements. See Ruffin, 270 S.W.3d at 595. Under Rule 403, a trial court “may

exclude relevant evidence if its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative evidence.”

Tex. R. Evid. 403.

48
C. Analysis

1. Fabian

Briseno argues that Fabian’s testimony and Morrison’s testimony about his

mental illnesses directly negated the required mens rea for murder and was thus

admissible under article 38.36(a) and Ruffin v. State. See 270 S.W.3d at 586. We

first address Fabian’s testimony. We note that before trial, Briseno conceded he did

not file the requisite notice of intent to enter a plea of not guilty by reason of insanity

nor did he intend to claim that defense. See Tex. Penal Code Ann. § 8.01 (“It is an

affirmative defense to prosecution that, at the time of the conduct charged, the actor,

as a result of severe mental disease or defect, did not know that his conduct was

wrong.”). Yet, he argued that Fabian’s testimony was relevant to intent, as it could

provide evidence of a reduced culpable mental state such as “reckless” or “criminal

negligence.” The State repeatedly argued such evidence was not relevant during guilt

or innocence, as it did not directly negate intent, and it objected based on Rule 403.

The defense argued it was relevant and urged the court to perform a Rule 403

balancing test.

When the State asked whether all Briseno’s diagnoses negated mens rea,

Fabian responded with a question, “What is the mens rea intent you are trying to

prove?” He then explained that Briseno does not know what happened at that

moment, so in his opinion, “there’s evidence of a dissociative state, then that would

49
be relevant to his intent at that moment.” When asked directly whether Briseno “was

fundamentally incapable of forming intent on the day of the offense[,]” Fabian

opined that “Briseno’s ability to form intent at that moment was compromised in a

dissociative rage and there was evidence of the [e]ffect of alcohol and he has

evidence of brain dysfunction.” Fabian testified that those conditions made Briseno

volatile, angry, impulsive, sensitive to rejection, snappy, and rageful.

Fabian equivocated when testifying during the hearing, and he even

questioned what “mens rea intent” the State was trying to prove before opining that

Briseno’s ability to form intent was “compromised.” 3 The defense did not elicit

testimony from Fabian clarifying what he meant by “intent” after he questioned its

meaning nor did it elicit testimony about how this “dissociative rage” compromised

Briseno’s ability to engage in conduct intentionally or knowingly. See Vinson v.

State, 252 S.W.3d 336, 340 (Tex. Crim. App. 2008) (recognizing proponent’s burden

of establishing the admissibility of the proffered evidence). Fabian’s testimony

seemingly offered more of an explanation for why Briseno reacted the way that he

3
After the trial court excluded his testimony during guilt/innocence, Fabian
answered more directly when allowed to testify during the punishment phase.
Specifically, defense counsel asked Fabian if he had “an opinion about whether he
[Briseno] was in a dissociative state or a state that was described to you by Mr.
Briseno?” Fabian responded, “No. I believe that he had evidence of a dissociative
episode pursuant to these borderline personality features that has to do with him
snapping, and I believe alcohol is part of it.” (Emphasis added.)
50
did, attributing his volatility, anger, impulsivity, sensitivity, and rage to the

combinations of his conditions, brain dysfunction, and alcohol.

Although the defense contended that the testimony was relevant to a reduced

culpable mental state, during the hearing Fabian did not offer any testimony that

would have explained how Briseno’s conduct was reckless or criminally negligent

as opposed to intentional or knowing. In other words, he never testified that Briseno

did not know he was shooting at an individual repeatedly or that he was shooting at

Khoussinov specifically or was unable to perceive that pointing and shooting a

loaded gun at someone was dangerous. During the hearing, Fabian never explained

how evidence of a dissociative rage impacted Briseno such that rather than acting

intentionally or knowingly, he acted with the lesser culpable mental state of either

recklessness or criminal negligence. Absent evidence that (1) Briseno was unable to

intentionally or knowingly shoot Khoussinov or (2) testimony explaining how a

dissociative rage meant Briseno acted recklessly or with criminal negligence

considering these specific facts—that he retrieved a weapon from a safe and fired

ten shots at Khoussinov while she was backed into a corner—Fabian’s testimony

regarding Briseno’s mental illness also risked confusing the issues and misleading

the jury. See Tex. R. Evid. 403.

Considering the record, the trial court was within the zone of reasonable

disagreement to conclude that Fabian’s testimony concerning Briseno’s mental

51
illness did not directly rebut his culpable mens rea or explain how it meant that he

acted recklessly or with criminal negligence. See Mays, 318 S.W.3d at 382; Ruffin,

270 S.W.3d at 596; see also Heath, 696 S.W.3d at 688–89. The trial court could also

have reasonably concluded that the evidence risked confusing the issues and

misleading the jury and thus was inadmissible under Rule 403. See Tex. R. Evid.

403; Ruffin, 270 S.W.3d at 595. Therefore, the trial court did not abuse its discretion

by excluding Fabian’s testimony during the guilt/innocence phase. See Jackson, 160

S.W.3d at 574 (noting abuse of discretion standard); see also Mays, 318 S.W.3d at

382; Ruffin, 270 S.W.3d at 596.

We conclude that the trial court properly excluded evidence that did not

directly negate mens rea or concluded that such evidence risked confusing the issues

and misleading the jury in violation of Rule 403, and the defendant’s constitutional

right to present a defense was not compromised. See Davis v. State, 313 S.W.3d 317,

329 n.26 (Tex. Crim. App. 2010) (explaining that constitutional right to “meaningful

opportunity to present a complete defense ” is qualified by requirement that

defendant’s evidence be relevant and not excluded by established evidentiary

rule); Renteria v. State, 206 S.W.3d 689, 697 (Tex. Crim. App. 2006) (concluding

that admission of constitutionally relevant evidence is not required if it is otherwise

objectionable under state law).We overrule issue one.

52
2. Morrison

Briseno similarly argues the trial court erred by excluding his counselor,

Morrison’s, testimony during guilt/innocence. Morrison’s testimony was even more

attenuated than Fabian’s. Morrison described her treatment of him over many years,

which Briseno contends was evidence necessary to explain his actions and behavior

witnessed by Kyle, Bowker, and Miller just moments after the shooting when he

went to Bowker’s home in an erratic and frantic manner. That said, Morrison

specifically denied having any insight into Briseno’s mental state at the time of the

shooting. Given Morrison’s testimony that she could not offer evidence of Briseno’s

mental state when the shooting occurred, the trial court likewise was in the zone of

reasonable disagreement to conclude that her testimony concerning Briseno’s mental

illness did not directly rebut his culpable mens rea. See Mays, 318 S.W.3d at 382;

Ruffin, 270 S.W.3d at 596; see also Heath, 696 S.W.3d at 688–89. Therefore, we

further conclude that the trial court did not abuse its discretion by excluding

Morrison’s testimony during the guilt/innocence phase. See Jackson, 160 S.W.3d at

574 (noting abuse of discretion standard); see also Mays, 318 S.W.3d at 382; Ruffin,

270 S.W.3d at 596. Having properly excluded Morrison’s testimony of Briseno’s

mental illness during guilt/innocence, the trial court did not violate his constitutional

right to present a defense. See Davis, 313 S.W.3d at 329 n.26; Renteria, 206 S.W.3d

at 697. We overrule issue two.

53
VI. Issue Three: Exclusion of Expert Testimony Under Rule 404

In his third issue, Briseno complains that the trial court abused its discretion

when it excluded evidence of a relevant character trait from Morrison, a mental

health professional. Briseno complains Morrison’s testimony she was not afraid of

him was admissible under Texas Rule of Evidence 404 as relevant character

evidence of his nonviolent nature.

At the conclusion of Morrison’s testimony during the hearing to determine

whether her testimony would be admitted during guilt/innocence, Briseno argued

that she worked with him from 2013 through 2019. He argued that she testified she

was unafraid of him and “that it’s relevant under 401.”

In a criminal case, as an exception to the general rule that character evidence

is inadmissible, a defendant may offer evidence of a pertinent character trait. See

Tex. R. Evid. 404(a)(2)(A). We observe that Briseno never argued in the trial court

that the evidence was admissible under Rule 404. To preserve a complaint for

appellate review, a party must show it complained to the trial court by a timely

request, objection, or motion and provided the stated grounds for the ruling sought

with sufficient specificity to make the trial court aware of the complaint. Tex. R.

App. P. 33.1(a)(1)(A). “[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.” Reyna v. State, 168 S.W.3d 173, 177 (Tex.

54
Crim. App. 2005). Thus, the complaining party on appeal must have “brought to the

trial court’s attention the very complaint that party is now making on

appeal.” Id. (citation omitted). In other words, an appellant’s complaint on appeal

must comport with his complaint in the trial court. See id.; see also Pena v. State,

285 S.W.3d 459, 464 (Tex. Crim. App. 2009).

At trial, Briseno merely argued that the evidence was relevant under 401 to

show that Morrison was not afraid of him. He did not argue that the evidence was

admissible under Rule 404(a) to show his character for nonviolence. Since Briseno

contends on appeal that Morrison’s testimony was admissible for a reason he did not

raise in the trial court, he has failed to preserve this complaint for our review. See

Tex. R. App. P. 33.1(a)(1)(A); Pena, 285 S.W.3d at 464; Reyna, 168 S.W.3d at 177.

We overrule issue three.

VII. Issues Four and Five: Jury Charge

In issue four, Briseno contends that the trial court erred when it refused to

instruct the jury on the lesser-included offense of manslaughter. In issue five, he

argues that the trial court also erred by refusing to instruct the jury on the lesser-

included offense of criminally negligent homicide. During the charge conference,

Briseno requested these instructions. He cites the testimony of various witnesses

who stated after the shooting he was distraught, frantic, panicked, and breathing

heavily, which he contends “are not consistent with an intent to cause death or

55
serious bodily injury.” He also points to the fact that “the weapon was fired in an

erratic pattern in an extremely short period of time.”

A. Standard of Review and Applicable Law

We review a trial court’s refusal to submit a lesser-included instruction for

an abuse of discretion. See Chavez v. State, 666 S.W.3d 772, 776 (Tex. Crim. App.

2023). Here, a lesser-included offense is one which “differs from the offense charged

only in the respect that a less culpable mental state suffices to establish its

commission.” Tex. Code Crim. Proc. Ann. art. 37.09(3). We use a two-step test to

determine whether an instruction on a lesser-included offense should be given. See

Ritcherson v. State, 568 S.W.3d 667, 670 (Tex. Crim. App. 2018); Cavazos v. State,

382 S.W.3d 377, 382 (Tex. Crim. App. 2012); Hall v. State, 225 S.W.3d 524, 535

(Tex. Crim. App. 2007). First, we compare the statutory elements of the alleged

lesser offense with the statutory elements and indictment’s descriptive allegations.

Ortiz v. State, 623 S.W.3d 804, 806 (Tex. Crim. App. 2021) (citing Ritcherson, 568

S.W.3d at 670–71). Second, we ask “whether ‘there is some evidence in the record

that would permit a jury to rationally find that, if the defendant is guilty, he is guilty

only of the lesser-included offense.’” Id. (quoting Bullock v. State, 509 S.W.3d 921,

925 (Tex. Crim. App. 2016)). This second step requires (1) evidence directly refuting

or negating other evidence establishing the greater offense and raising the lesser-

included offense, or (2) evidence susceptible to different interpretations, one of

56
which refutes or negates an element of the greater offense and raises the lesser

offense. Ritcherson, 568 S.W.3d at 671.

Evidence raising the lesser offense must be affirmatively in the

record. Id. “[A] defendant is not entitled to a lesser-included offense instruction

based on the absence of evidence, and the evidence must be ‘directly germane to the

lesser-included offense[.]’” Id. (citing Skinner v. State, 956 S.W.2d 532, 543 (Tex.

Crim. App. 1997)). We consider all the evidence admitted at trial, and if more than

a scintilla of evidence raises the lesser offense and negates or rebuts an element of

the greater offense, the defendant is entitled to a lesser-charge instruction. Id.; Roy

v. State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017). Whether the evidence is

controverted or credible does not matter. Ritcherson, 568 S.W.3d at 671. In

determining whether Briseno had the intent to murder or only caused Khoussinov’s

death recklessly or with criminal negligence, the sole question “is whether a jury

could have reasonably interpreted the record in such a way that it could find

Appellant guilty of only” manslaughter or criminally negligent homicide. See id. at

676.

As noted in our sufficiency analysis, a person commits murder if he

“intentionally or knowingly causes the death of an individual,” or if he “intends to

cause serious bodily injury and commits an act clearly dangerous to human life that

causes the death of an individual.” Tex. Penal Code Ann. § 19.02(b)(1)–(2). In

57
contrast, a person commits manslaughter if he “recklessly causes the death of an

individual.” Id. § 19.04(a). A person acts recklessly when he is “aware of but

consciously disregards a substantial and unjustifiable risk that . . . the result will

occur.” Id. § 6.03(c). A person commits criminally negligent homicide if, with

criminal negligence, he causes the death of an individual. Id. § 19.05(a). A person

commits a criminally negligent act “when he ought to be aware of a substantial and

unjustifiable risk that the circumstances exist or the result will occur.” Id. § 6.03(d).

Manslaughter and criminally negligent homicide are lesser-included offenses

of murder. See Cavazos, 382 S.W.3d at 384 (addressing manslaughter as a lesser-

included); Cardenas v. State, 30 S.W.3d 384, 392 (Tex. Crim. App. 2000)

(recognizing criminally negligent homicide as lesser-included offense of murder).

The State concedes this first step of the analysis. At issue here is the second step of

the analysis and “whether ‘there is some evidence in the record that would permit a

jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser-

included offense.’” Ortiz v. State, 623 S.W.3d at 806. This second step requires (1)

evidence directly refuting or negating other evidence establishing the greater offense

and raising the lesser-included offense, or (2) evidence susceptible to different

interpretations, one of which refutes or negates an element of the greater offense and

raises the lesser offense. Ritcherson, 568 S.W.3d at 671.

58
B. Analysis

1. Manslaughter

We turn first to manslaughter. In Cavazos v. State, the Court of Criminal

Appeals determined that where a defendant pulled a firearm in a crowded room and

shot the victim twice, he was not entitled to a lesser-included charge of

manslaughter. See Cavazos, 382 S.W.3d at 380. Cavazos asserted there was no

evidence he intentionally fired the gun at the victim, and because his conduct

constituted mere recklessness, he was entitled to the manslaughter instruction. Id. at

385. In rejecting his argument, the Court of Criminal Appeals reasoned that

“[p]ulling out a gun, pointing it at someone, pulling the trigger twice, fleeing the

scene (and the country), and later telling a friend ‘I didn’t mean to shoot anyone’

does not rationally support an inference that [he] acted recklessly at the moment he

fired the shots.” Id. The Court recognized that the record must contain “more than

mere speculation—it requires affirmative evidence that both raises the lesser-

included offense and rebuts or negates an element of the greater offense.” Id. In other

words, the evidence produced must be sufficient to establish the lesser-included

offense is a “valid, rational alternative” to the charged offense. Id. (citation omitted).

Here, “mere speculation” is all that Briseno has alluded to for support of his

claim on appeal. Briseno points to multiple witnesses’ testimony about how Briseno

acted after he shot his girlfriend, and that they described him as upset, panicked,

59
distraught, and frantic. He also asserts that the gun was fired erratically. Briseno’s

being upset after the fact does not negate his intent at the time he shot and killed his

girlfriend, and it is founded on mere speculation. Rather, the evidence adduced at

trial established he retrieved the gun from the gun safe, may have had to disengage

the safety, fired ten times at Khoussinov while she was cornered in the room, and hit

her with eight of those shots. Despite being upset, he also admitted to witnesses that

he killed Khoussinov. Moreover, as to his claim that the shots were fired erratically,

we see no such evidence in the record. Rather, Investigator Wright testified that a

person hitting another individual eight out of ten shots required managing recoil with

this weapon. Here, no evidence suggests that Briseno fired inadvertently as he waved

the gun around or performed some other reckless act. See Tex. Penal Code Ann. §

19.04(a). Since the kind of evidence “that both raises the lesser-included offense and

rebuts or negates an element of the greater offense[]” is missing in this record, the

trial court did not abuse its discretion in declining to charge the jury manslaughter.

See Cavazos, 382 S.W.3d at 385; see also Chavez, 666 S.W.3d at 776. We overrule

issue four.

2. Criminally Negligent Homicide

In support of issue five, Briseno contends that evidence showed he was

criminally negligent. He asserts there was evidence he did not leave during an

argument, handled a high-powered weapon and pointed it at the complainant while

60
intoxicated, and failed to perceive how the potential outcome of these actions could

result in Khoussinov’s being shot multiple times.

In the context of criminally negligent homicide, criminal negligence means

that the defendant should have known of the risk surrounding his conduct but failed

to perceive it. See Tex. Penal Code Ann. §§ 6.03(d), 19.05(a). While we agree that

evidence showed that Briseno did not leave, handled a high-powered weapon and

pointed it at Khoussinov while he was intoxicated, we disagree that there was any

evidence in the record that he failed to perceive that taking these actions could result

in Khoussinov’s being shot. Briseno’s being frantic after the fact would still require

us to speculate about what he perceived at the time he acted. Rather, evidence

undisputedly established that he was familiar with guns and had to take specific steps,

including firing at her multiple times in a fashion that managed recoil, and hitting

her with eighty percent of the shots. Even if he attempts to use voluntary intoxication

as a defense in that it impacted his ability to perceive that Khoussinov could have

been shot, we note that voluntary intoxication is not a defense to the commission of

the offense. See id. § 8.04. Here, there is no evidence that Briseno was unaware of

the risk his actions posed to Khoussinov’s safety despite his assertion to the contrary.

See Espinosa v. State, 899 S.W.2d 359, 365 (Tex. App.—Houston [14th Dist.] 1995,

pet. ref’d). We hold that absent affirmative evidence Briseno was unaware of the

risk his actions posed to Khoussinov’s safety, the trial court did not abuse its

61
discretion by denying Briseno’s requested lesser-included offense instruction on

criminally negligent homicide. See Tex. Penal Code Ann. §§ 6.03(d), 19.05(a);

Chavez, 666 S.W.3d at 776 (stating standard of review); Espinosa, 899 S.W.2d at

365; see also Cavazos, 382 S.W.3d at 380 (explaining no affirmative evidence

existed that did not require speculation in context of manslaughter). We overrule

issue five.

VIII. Issues Six, Seven, and Eight: Admission of Photographs

In issues six through eight, Briseno complains that the trial court abused its

discretion by admitting photographs of him with the AK-47 (State’s Exhibits 214–

16) and certain autopsy photographs (State’s Exhibits 185, 188–89). In issues six

and seven he complains that the photographs with him holding the weapon were (1)

irrelevant, and (2) the probative value of the photographs was outweighed by the

prejudicial impact. In support of these issues, he cites Texas Rules of Evidence 401,

402, and 403. See Tex. R. Evid. 401–03. In issue eight, Briseno asserts that probative

value of the autopsy photographs was outweighed by danger of unfair prejudice, and

the trial court should have excluded them under Rule 403. See id. 403.

A. Standard of Review and Applicable Law

We review a trial court’s admission of photographs for an abuse of discretion.

See Williams v. State, 301 S.W.3d 675, 690 (Tex. Crim. App. 2009) (analyzing in

context of Rule 403 objection); Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim.

62
App. 2004). A trial court does not abuse its discretion in admitting photographs when

its ruling lies within the zone of reasonable disagreement. Heath, 696 S.W.3d at

688–89; Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). “A

photograph is generally admissible if verbal testimony about the matters depicted in

the photograph is also admissible.” Paredes, 129 S.W.3d at 539 (citation omitted).

“Autopsy photographs are generally admissible unless they depict mutilation of the

victim caused by the autopsy itself.” Parker v. State, 727 S.W.3d 38, 71 (Tex. Crim.

App. 2025) (internal quotations omitted) (citation omitted). “Changes rendered by

the autopsy process are of minor significance if the disturbing nature of the

photograph is primarily due to the injuries caused by the appellant.” Hayes v. State,

85 S.W.3d 809, 816 (Tex. Crim. App. 2002) (citation omitted).

Evidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of consequence

in determining the action. Tex. R. Evid. 401. Rule 402 states the general rule that

relevant evidence is admissible, and irrelevant evidence is inadmissible. See id. 402.

Under Rule 403, even relevant evidence can be excluded if the trial court determines,

among other things, that its probative value is substantially outweighed by its

prejudicial effect. See id. 403. Rule 403 requires photographs to possess some

probative value and that the inflammatory nature does not substantially outweigh

that value. Williams, 301 S.W.3d at 690. “In deciding whether photographs are

63
unfairly prejudicial, we must also consider the following factors: the number of

photographs, the size, whether they are in color or black and white, whether they are

gruesome, whether any bodies are clothed or naked, and whether a body has been

altered by autopsy.” Prible v. State, 175 S.W.3d 724, 734 (Tex. Crim. App. 2005);

see also Williams, 301 S.W.3d at 690.

B. Analysis

1. Photographs of Firearm

Two of the complained-of photographs showed Briseno holding the weapon

with the firearm against his shoulder, and the other showed the weapon lying on the

ground. Briseno complains they are irrelevant, and the probative value is outweighed

by unfair prejudice and danger of confusing the jury. At trial, initially, the dates the

photographs were taken could not be determined, yet it was later determined that

two of them were taken about two years before the shooting. The trial court admitted

them, though, before the date had been determined.

Even so, the photographs showed that Briseno was familiar with using the

firearm, had previously fired the weapon rested against his shoulder, and the other

photograph showed a closeup of the weapon, including the safety mechanism. Given

the defense’s argument that he was reckless or criminally negligent, these

photographs went to prove his familiarity with the weapon, that he knew how to use

it, which could have been useful in determining he was aware of the risks associated

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with the firearm. Additionally, at trial, the defense attempted to show that Briseno

did not fire this weapon from his shoulder, and if he had, he would have been bruised.

The photographs showed that Briseno had experience firing the weapon from his

shoulder. The trial court could have reasonably determined they were relevant. See

Tex. R. Evid. 401. Considering the relevant factors, the complained-of photographs

were only three in number, they were not gruesome, and they were in color. The trial

court could have likewise reasonably concluded that the probative value of the

photographs showing Briseno shooting the weapon and of the weapon lying on the

floor was not substantially outweighed by the prejudicial effect. See Williams, 301

S.W.3d at 690; Prible, 175 S.W.3d at 734; see also Tex. R. Evid. 403. Thus, we hold

the trial court did not abuse its discretion by admitting State’s Exhibits 214–16. See

Williams, 301 S.W.3d at 690; Paredes, 129 S.W.3d at 539. We overrule issues six

and seven.

2. Autopsy Photographs

In his eighth issue, Briseno argues the trial court erred by admitting autopsy

photographs (State’s Exhibits 185, 188, and 190) over his objection, because the

probative value was outweighed by the danger of unfair prejudice. See Tex. R. Evid.

403. He asserts that because the photographs were not published or discussed with

any witness, they had no probative value. The State concedes the graphic nature of

the photographs. The photographs show close-ups of Khoussinov’s nude body: (1)

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with an entrance and exit wound near her left hip; (2) with an entrance wound in her

front left thigh; and (3) from behind with multiple exit wounds.

The trial court could have reasonably determined that even though these

specific exhibits were not discussed by the forensic pathologist or other witnesses

on the stand, they were probative of the locations of the GSWs from angles not

depicted in other photographs, the number of bullet wounds, and where the bullets

entered and exited. See Williams, 301 S.W.3d at 690; Prible, 175 S.W.3d at 734; see

also Tex. R. Evid. 403. Further, these photographs showed what Pinneri described

in her testimony and could have helped the jury orient themselves to other

photographs Pinneri discussed. See Paredes, 129 S.W.3d at 539 (explaining that

photographs are generally admissible if verbal testimony about the matters depicted

is also admissible). Finally, the photographs did not show mutilation caused by the

autopsy itself but showed the result of the injuries Briseno inflicted on Khoussinov

and were highly probative for that purpose. See Parker, 727 S.W.3d at 71; Hayes,

85 S.W.3d at 816.

The trial court was within the zone of reasonable disagreement to determine

that the probative value of the complained-of autopsy photographs was not

substantially outweighed by the risk of unfair prejudice. See Tex. R. Evid. 403;

Heath, 696 S.W.3d at 688–89; Young, 283 S.W.3d at 874. Therefore, we hold the

trial court did not abuse its discretion by admitting the complained-of autopsy

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photographs. See Williams, 301 S.W.3d at 690; Paredes, 129 S.W.3d at 539. We

overrule issue eight.

IX. Conclusion

Having overruled each of Briseno’s issues, we affirm the trial court’s

judgment.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on February 10, 2026
Opinion Delivered May 27, 2026
Do Not Publish

Before Golemon, C.J., Johnson and Wright, JJ.

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