Randy Steven Estrada v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-23-00107-CR
__________________

RANDY STEVEN ESTRADA, Appellant

V.

THE STATE OF TEXAS, Appellee

__________________________________________________________________

On Appeal from the 435th District Court
Montgomery County, Texas
Trial Cause No. 20-12-15700-CR
__________________________________________________________________

MEMORANDUM OPINION

Luis Ortiz (“Luis” or “Ortiz”) died from multiple gunshot wounds he received

on December 18, 2020. A grand jury indicted Appellant Randy Steven Estrada

(“Appellant,” “Randy,” or “Estrada”) for Ortiz’s murder. Estrada pleaded “not

guilty,” but a jury found him guilty of first-degree murder and sentenced him to

twelve years of imprisonment. Estrada raises two issues on appeal: (1) the trial court

erred by denying his request for an instruction on defense of third persons, and

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(2) the trial court erred by talking to a juror when Estrada’s attorney was not present.

As explained below, we overrule both issues and affirm the judgment of conviction.

Evidence at Trial: Witnesses for the State

At the beginning of the trial, the State published to the jury Exhibit 1, an audio

recording of Estrada’s 911 call from the night of December 18, 2020. In the

recording, Estrada tells the 911 operator that he shot someone. Estrada tells the

operator he shot “my baby mama’s boyfriend.” The operator asks Estrada why he

shot him, and Estrada replies, “they wanted to fight [and] I told them to leave the

house.” Estrada also told the operator that the children were in the house.

Testimony of Sergeant Benjamin Polansky

At the time of trial, Sergeant Benjamin Polansky testified that he was working

for the Texas Highway Patrol in Laredo, but in December of 2020, he worked with

the Texas Highway Patrol in Montgomery County. Polansky recalled that on the

night of December 18, 2020, he received a high priority call about a shooting in

Montgomery County. Polansky was wearing his body camera when he arrived at the

scene. Polansky identified State’s Exhibit 4 as video from his body camera of the

scene where the shooting occurred, and the exhibit was admitted into evidence and

published to the jury. The video depicts officers arriving at the scene and going into

the home, where they encounter children in a bedroom. In the video, Estrada’s

former girlfriend, Barbara, tells Polansky that all her children are inside.

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Testimony of Charlie1

Charlie testified that he worked in construction and dirt moving, and he hires

from fifty to ninety people, both employees and subcontractors. Charlie testified that

he had known “Barbara” since she was three or four years old, they lived across the

street from one another, and about five years before trial, Barbara started working

for him. He agreed that he and Barbara had a romantic relationship off and on for

some time. Charlie also testified that Luis Ortiz had worked for him for several years.

Charlie recalled that he met Randy through Barbara when Barbara and Randy started

dating, and that Barbara and Randy moved next door to Charlie at some point.

According to Charlie, Randy had worked for him from time to time, he had known

Randy for thirteen or fourteen years, and Charlie identified the defendant as Randy

Estrada. Charlie testified that in December of 2020, Barbara and Luis had been in a

romantic relationship for several months, and they were living together. Barbara and

Randy were no longer living together, but they were still coparenting.

Charlie recalled that on December 18, 2020, he, Barbara, and Luis went to a

restaurant for dinner, and while they were eating, one of Barbara’s children, Sam—

whose father is Randy—called her from Randy’s house. Sam wanted to come home

1
We use pseudonyms to refer to persons not affiliated with law enforcement
or expert witnesses except for the Appellant and the deceased.
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to Barbara’s house because Sam was not getting along with his father, and Charlie,

Barbara, and Luis went to Randy’s house, each driving their own vehicle.

Charlie testified that Barbara pulled into the driveway and went into Randy’s

house, and Luis and Charlie parked on the street where they waited for five or ten

minutes. After a few minutes, Randy came outside and talked to Luis and Charlie

and told them to come talk to him. Charlie and Luis approached the house, Charlie

stood with one foot on the front step, and Luis was behind Charlie. Charlie testified

that he and Randy talked about work for about five minutes, and then Randy asked

Charlie to leave. Charlie stepped to the side of the yard and leaned against a

trampoline. Charlie testified that, “maybe a second or two later, Randy said

something and [Charlie] did not make out what it was and almost at the same time,

[Randy] pulled his gun out and shot three shots.” Charlie recalled that Barbara and

the children were standing on the porch, and when Barbara tried to stop Randy,

Randy pushed Barbara down and then he ran to where Luis was lying face down and

Randy shot Luis again “multiple times” while Barbara tried to stop Randy. Charlie

testified that before Randy started shooting, Luis did not say anything to Randy, and

he did not do anything to Randy to threaten serious bodily injury or death.

Charlie testified that when the shooting started, Charlie ran for his truck, and

called 911, who instructed him to perform CPR, and Charlie got his gun from the

truck and went towards Luis. Charlie recalled that he laid his gun at Luis’s head

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because he did not want any more shooting to happen. According to Charlie, he then

rolled Luis onto his back and started CPR. At one point, Barbara picked up Charlie’s

gun, but after Charlie told her not to, she laid it back down. When Charlie heard

sirens from the police coming down the road, he “picked [his] gun up, put it back

[on] [his] hip and put [his] jacket back over it and continued CPR.” An audio

recording of Charlie’s 911 call was admitted into evidence and published to the jury.

Therein, Charlie tells the dispatcher that “a guy’s just been shot[,]” “for no reason

he shot him fifteen times[,]” and “we were just sitting there talking [] and he just

pulled a gun out and shot him fifteen times.”

Charlie recalled that when emergency personnel took over CPR, Charlie put

his gun back in his truck. According to Charlie, at first he did not tell the police he

had a gun in his truck, but when they asked him if he had a gun, Charlie told them

he did, and the police collected his gun. Charlie recalled that his gun was in his truck

until Randy started shooting. Charlie testified that he did not see a gun on Luis when

he rolled Luis onto his back. According to Charlie, neither he nor Luis threatened

Randy with deadly force that night.

On cross-examination, Charlie agreed that he had told Barbara that night that

he was going to back up Luis and “make sure that nothing happened [and] that he

didn’t get beat[en] up[,]” and he said he did not have any problems with Randy.

According to Charlie, Randy fired three shots from the porch and then stepped down,

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went over to Luis, and continued to shoot Luis. Charlie testified that after doing CPR

on Luis, he had a lot of blood on himself, he washed his hands at some point, and he

assumed there was blood on his gun because his hands were bloody when he picked

it up. Exhibit 4, the recording from Sergeant Polansky’s body camera, shows Charlie

using hand wipes to clean his hands. Charlie recalled the police looking at messages

on his phone at the scene. He also testified that he told the police he had an intimate

relationship with Barbara and that he was married to Sara, but he and Sara were

separated.

Testimony of Kimberly Christensen

Kimberly Christensen testified that she is a crime scene investigator for the

Montgomery County Sheriff’s Office, and she previously was a patrol deputy.

Christensen agreed she was asked to go to a scene in New Caney on December 18,

2020, at about 10:40 p.m. with a search warrant. Christensen identified State’s

Exhibits 3 through 33, 45 through 52, and 137 through 138 as photos of the scene

that night. Christensen identified three cell phones lying on the ground in Exhibits

21, 22, and 23. She also identified some fired cartridge casings, and she testified that

she recovered a total of eleven fired cartridge casings at the scene, which included a

fired cartridge found in the gun itself. According to Christensen, all the casings she

collected at the scene had the same headstamp from a .40 caliber Smith & Wesson

brand. Christensen identified State’s Exhibits 47 through 49 as photos of the kitchen

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at the home, and she testified that the photos were significant because “[t]he firearm

was located on top of the cupboard.” According to Christensen, the firearm was a

.40 caliber semiautomatic Glock pistol that had “the magazine [] seated in [with] one

unfired cartridge in it, and [] there was a fired cartridge casing in the chamber.”

Christensen testified that she took gunshot residue (“GSR”) swabs from Barbara and

Randy, that night but she did not take a GSR sample from Charlie because he had

cleaned his hands with hand sanitizer.

Christensen testified that after evidence was collected at the scene, she

“function tested” the firearms, including Charlie’s .40 semiautomatic H&K pistol

and Randy’s .40 semiautomatic Glock. She also testified that she took buccal swabs

from Charlie and DNA swabs from the guns. According to Christensen, she found

thirteen cartridges in Charlie’s gun. Christensen also identified items of clothing

from Luis that she received from the medical examiner’s office, including a knife

that had been recovered from Luis’s pants pocket. Christensen testified that Luis’s

clothing was sent to the Department of Public Safety (“DPS”) for GSR testing.

Testimony of Patricia Bui

Patricia Bui testified that she is the Firearms Examiner for the Montgomery

County Sheriff’s Office Crime Laboratory, and she previously worked for ATF and

DPS. When she received the firearms collected in this case, she checked and

measured them. Bui testified that, after performing her analyses, she concluded that

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the fired cartridge cases found at the scene were all fired by the Glock pistol, and

none were fired from Charlie’s H&K pistol. According to Bui, “[t]here were not any

fired cartridge cases that [she] identified back to the H&K pistol from the crime

scene.”

Testimony of Investigator Jeremy Thomas

Jeremy Thomas testified that he is an investigator at the Montgomery County

District Attorney’s office assigned to the Digital Forensic Unit and the Internet

Crimes Against Children Task Force. Thomas explained that digital forensics

involves the examination of computers, cell phones, networks, and vehicles. He

agreed he assisted with an extraction performed on the defendant’s cell phone in this

case, including a second extraction from the cell phone pursuant to a search warrant

when new software was available. He agreed he performed a full file system search

on Randy’s cell phone. Thomas agreed his report includes conversations from the

cell phone dated December 18, 2020, and the day before, and it included

conversations Randy had with Barbara, Charlie, and Luis. Thomas identified State’s

Exhibits 122 through 128 as extraction reports generated from the original extraction

from the cell phone.

Testimony of Detective Jeremy Kader

Jeremy Kader testified that he is a detective for the Montgomery County

Sheriff’s Office, he responds to scenes, interviews witnesses, and reviews evidence.

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Kader was on call in the Homicide Division on December 18, 2020, and he received

a call to go to the scene in this case. Kader recalled that when he arrived, he began

interviewing witnesses, including Barbara, Charlie, and Randy. According to Kader,

he learned that officers were going to collect GSR from people at the scene but not

from Charlie because Charlie had used hand sanitizer to clean blood from his hands.

Kader testified that he also obtained DNA swabs from Barbara, Charlie, and Randy,

and he received cell phones for Barbara, Luis, Randy, and Randy’s son Sam, but he

did not get Charlie’s phone.

Kader agreed that he reviewed the records of the phones after their content

was downloaded. The Detective identified State’s Exhibits 76 through 87 as what he

observed on Randy’s phone. Kader testified that Exhibit 78, a screenshot of “chats”

from Randy’s phone included two messages that state, “I just shoot Flaco.”

According to Kader, the first time he saw that message was when the device was

found on the ground at the scene on the night of the shooting, and while he was

working to determine who owned the device, he noticed “a reference to the shooting

on the screen” when he picked up the phone. Kader recalled that when he first

performed an extraction from Randy’s phone, he could not find these messages, but

after he was contacted by Investigator Thomas about doing a new download, he was

able to find the messages.

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Kader testified that messages retrieved from Barbara’s phone reflect that she

and Charlie anticipated there could be a fight that night. Kader confirmed that

messages retrieved from Randy’s phone indicated that Randy sent a message to

someone saying that he was getting a restraining or protective order. Kader also

testified that messages retrieved from Barbara’s phone indicate she had

communicated with Randy about getting a restraining or protective order and Randy

would not be able to see his children, one message included an attached handwritten

protective order, and these messages occurred about the same time that Randy had

messaged someone about a restraining order. According to Kader, messages between

Barbara and Randy at about 8 p.m. on December 18, 2020, reflect that Barbara told

him she was going to his house and would “knock the ‘F’” out of him, and Randy

told her not to come to his house. Kader testified that the call to 911 from Charlie

was at about 9:10 p.m. Then Randy called 911 at about 9:11 p.m. Kader further

testified that the download from Randy’s phone shows an outgoing Facebook

Messenger message from Randy at about 9:14 p.m. saying, “I just shoot Flaco” and

another one at 9:16 p.m.

Detective Kader testified that he reviewed the recording of Randy’s 911 call

and there was no discussion of anyone having a weapon other than Randy. He also

testified that, in speaking with Randy at the Detective’s office, there was no mention

of Randy seeing someone else with a weapon nor of Luis threatening Randy’s life.

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On cross-examination, Detective Kader testified that, even though a knife was found

in Luis Ortiz’s pocket, based on Kader’s review of the witness statements and other

evidence, he concluded there was no mention of a weapon being displayed by Luis

on the night of the shooting.

Kader agreed that the phone extraction showed there were angry texts between

Luis and Randy and between Barbara and Randy on the night of the shooting,

including a text from Randy to Barbara stating, “Ok only wanna act tuff when my

kids are around[.]” Kader further agreed that the text messages reflect that Randy

had told the others not to come to his house on the night of the shooting; however,

Kader also testified that his investigation showed “no indication there was an

imminent fear of serious bodily injury or death at that time[]” by Randy and “[t]here

was no indication” a pistol was ever seen near the victim. Kader agreed that he later

learned that Luis had provoked Randy verbally on the night of the shooting.

Testimony of Rebekah Lloyd

Rebekah Lloyd testified that she works in the Trace Evidence Section for the

DPS Crime Lab in Austin where she and Mike Martinez analyze GSR evidence.

According to Lloyd, analyses of swabs taken from people or clothing is helpful “to

associate someone” with “gunshot primer residue particles[,]” but GSR analysis

cannot tell whether a person was a victim or a witness.

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Lloyd agreed she was asked to analyze GSR swabs in this case. According to

Lloyd’s report, her analyses of GSR swabs detected no GSR particles in the swabs

from Randy or Barbara, and it is normally DPS policy not to perform GSR analyses

on samples from people who have been shot. Lloyd testified that she analyzed GSR

samples from Luis Ortiz, and “[n]o gunshot primer residue particles were detected[]”

from the sample from Ortiz’s hands, but GSR particles were confirmed from samples

from Ortiz’s jeans and belt from which she concluded there was a possibility that

Ortiz was in the presence of a firearm when it was discharged.

Testimony of Ashley Kibbe

Ashley Kibbe testified that she is a forensic scientist in the DNA section at

the DPS Crime Lab in Houston and she was assigned to work on this case. Kibbe

testified that she tested DNA samples obtained from a Glock 23 and an H&K VP40

and compared those samples to reference DNA samples from Charlie, Barbara,

Randy, Luis, and Michael Doyle.2 Kibbe testified that her report states that the DNA

swab from the Glock 23 is interpreted as a mixture of two individuals, the likelihood

ratio obtained indicates that Randy Estrada is a possible contributor to the profile,

and Luis Ortiz and Michael Doyle were excluded as contributors. Kibbe further

testified that her report states that the DNA swab from the H&K VP40 is interpreted

2
The appellate record reflects that Deputy Doyle was on the scene the night
of the shooting, he gave Charlie hand sanitizer to clean his hands, and he secured a
firearm at the scene.
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as a mixture of two individuals, and the likelihood ratio indicates that Luis Ortiz is

a possible contributor to the profile, but Randy and Michael Doyle were excluded as

contributors. Kibbe also testified that, as a result of her analysis, Barbara and Charlie

were excluded as contributors to the DNA profile obtained from the Glock, Barbara

was excluded as a contributor to the DNA profile obtained from the H&K VP40, and

Charlie was a possible contributor to the profile from the H&K VP40.

On cross-examination, Kibbe agreed that her analyses do not allow her to

conclude how a DNA sample got onto an object. She also agreed that just because

someone touches an object does not mean they will leave DNA on the object. She

testified that Luis Ortiz was included as a possible contributor to the DNA sample

on the H&K “with caution[.]”

Testimony of Barbara

Barbara testified that she works for K&K Earth Works, which Charlie owns.

According to Barbara, several of her family members work there. Barbara has four

sons and one daughter, Randy is the father of three of her sons, her daughter’s father

is Luis, and Randy raised all four boys. Barbara recalled that she had known Randy

for about twenty years, since she was a teenager. According to Barbara, she and

Randy were together for about ten years, but she and Randy had not been living

together for about eight months when the shooting occurred.

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Barbara testified that she met Luis through his work at K&K Earth Works.

According to Barbara, she and Luis dated for about two years, and she was dating

Luis while she was still living with Randy. Barbara testified that, on the night of the

shooting, she was three months pregnant, and both Luis and Randy knew she was

pregnant. Barbara testified that Luis did not have a firearm, and she had never seen

Luis with a firearm. Barbara testified that she had known Charlie all her life, they

had a “brother/sister” relationship, but they also had an on-and-off again sexual

relationship.

Barbara testified that for several months before the shooting, she and Randy

were always arguing. Barbara recalled arguing with Randy about him having a

firearm out in front of the children and arguing about money. She also recalled

arguments between Luis and Randy over “dumb stuff[]” such as Randy showing up

at Luis’s home. Barbara testified that on one occasion, Luis threw a punch at Randy,

but the fight only lasted a few seconds. Barbara recalled that Randy and Luis

bickered after that incident.

On the night of the shooting, she went to eat at a restaurant with Luis, Charlie,

and a young girl, Mary, who was a family friend. While they were at the restaurant,

Barbara’s son Sam called her, he was crying, and he wanted Barbara to come get

him. Sam was about five years old at the time. She told Luis and Charlie that she

was going to Randy’s house, and Luis and Charlie also went with her to Randy’s.

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Barbara also talked to Randy and told him she was coming to get the children, and

Randy told her not to come and to leave the children with him. Barbara then told

Randy that she, Charlie, Luis, and Mary were coming over. According to Barbara,

she told Randy, “we would fight[,]” but she testified that “my fighting is arguing.”

Barbara did not recall telling Randy she would “kick his ass” that night, but she

agreed she had previously told him she would do so.

Barbara testified that she pulled into Randy’s driveway, Charlie and Luis

parked their trucks on the street, and she went into Randy’s house to get Sam.

Barbara recalled she was angry, she agreed she was “a bitch” that night, and she and

Randy argued about her taking the children. She also told Randy that Charlie and

Luis were waiting outside. Barbara recalled that, at that time, Randy was working

for K&K, and Randy also believed that Charlie owed him money. Barbara testified

that she told Randy that Charlie was outside if he wanted to talk to him about the

money, and Randy went outside.

Barbara recalled that she followed Randy outside, she and Randy were on the

porch, Charlie was standing “below the porch[,]” and Luis was in the yard. Barbara

testified that her children were “[b]ehind the door and at the window[,]” and she told

them to close the door. Barbara let Randy and Charlie talk about the money issue for

about five minutes, at which point Randy told Charlie to move over. Barbara recalled

that Charlie moved over to the trampoline and Randy pulled out his gun, and Charlie

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told Randy to take his hands out of his pocket. Barbara testified that Randy then

reached into his pocket and started shooting. According to Barbara, Luis had not said

anything to Randy, and he was just listening. Barbara testified that she started

fighting Randy for the gun, Randy jumped off the porch, Randy ran to Luis and

“[s]tood right over him. He unloaded the gun. I don’t know how many shots, [] but

he just did it until it didn’t click [any] more.”

Barbara testified that she and Randy went inside, and both Randy and Barbara

called 911. Barbara identified State’s Exhibit 3 as her 911 call, and the exhibit was

admitted and published to the jury. Therein, Barbara tells the dispatcher that

someone had been “shot multiple times.” Barbara testified that the police arrived

while Charlie was giving CPR to Luis. Barbara testified that she did not see Luis

with a gun that day, and she did not recall anybody threatening someone’s life with

their words although she remembered Luis saying something like, “Let’s fight like

men.”

On cross-examination Barbara testified that, one time in 2020, when Randy

was coming over to pick up the children, Luis swung at Randy, and Randy swung

back, but “they ended up hugging.” According to Barbara, other than that incident,

there were no other physical altercations between the two men. She agreed that she

had an intimate relationship with Charlie during the time that she was in a

relationship with Luis and for a while after she and Randy separated but when she

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was still living at Randy’s house. Barbara agreed that she told Randy many times

that Luis was going to “beat his ass[.]”

Barbara testified that on the night of the incident, Randy told her, “You are

not going to take the kids.” She also agreed the text messages reflected that Randy

had texted her, “You better not come over here[.]” When she arrived at Randy’s

house that night, she went to the bedroom and told Randy she was taking the kids

and that Charlie was waiting to talk to him. At some point, she heard Randy walk

through the kitchen to the front porch, and she stayed in the bedroom with the

children, and after a couple of minutes, she walked outside, and the children were

still in the bedroom. Barbara recalled that, when Randy was on the front porch, he

told Charlie and Luis, “y’all come up here[,]” and they came up to the porch.

According to Barbara, while Randy and Charlie talked, Luis did not say anything.

Barbara testified that she did not know why Randy was carrying a firearm, and it

could not have been based on Luis assaulting him. Barbara did not remember

jumping onto Randy’s back that night, but she did remember fighting with him for

the gun. According to Barbara, Randy kept “firing however many gunshots that gun

had until there was no firing in it[,]” and then Randy walked inside and called 911.

Barbara recalled that the kids were inside.

An audio recording of the statement Barbara made in Detective Kader’s

vehicle on the night of the shooting was admitted as State’s Exhibit 141. In the

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recording, Barbara tells Kader that she did not think the children heard or saw

anything because they were playing PlayStation in a back room. She tells Kader that

Randy had been angry for a few days because she told him she wanted a restraining

order, and he would not be able to carry a gun. Barbara tells Kader that Luis told

Randy, “if you want to fight, let’s fight.” Barbara tells Kader that Randy fired “a

lot[]” of shots, “the whole gun[,]” and continued to shoot even after Luis was lying

on the ground. And Barbara tells Kader that Luis had no weapons of any kind that

night, and that she saw that Charlie had a gun when he started CPR on Luis.

Testimony of Dr. Sarah Doyle

Dr. Sarah Doyle testified that she is a pathologist at the Montgomery County

Forensic Services Department. She agreed she conducted an autopsy on Luis Ortiz

on December 19, 2020. She testified that she found five distinct gunshot wounds on

Ortiz at the following sites: (1) left chest, (2) head, (3) right thigh, (4) upper left

back, and (5) right hand. Dr. Doyle concluded that the cause of death was multiple

gunshot wounds, and the manner of death was homicide. According to the doctor,

the wound to Ortiz’s chest would not have been survivable, and the wound to Ortiz’s

head could potentially have been fatal. Doyle testified that a pocketknife was found

in Ortiz’s pocket. Doyle agreed she collected GSR from Ortiz’s hands and packaged

it as evidence.

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Witnesses for the Defense

Testimony of Don

Don testified that he had known Charlie since he was in grade school and that

Charlie had gone to school with Don’s daughter. Don testified that, based on his

knowledge of Charlie, he found Charlie’s reputation for truth and veracity “very

poor[,]” and he regarded Charlie as having no reputation for fair dealing. On cross-

examination, Don testified that he was not present at the incident on the night of the

shooting.

Testimony of Jack

Jack testified that he had known Randy for about sixteen years, and he also

knows Barbara, Charlie, and Luis. Jack agreed he had personal experience with Luis

being aggressive with him, and he testified that one day at work, Jack said that some

other workers were complaining, Jack called them “crybabies[,]” and Luis took off

his jewelry to get physical and fight Jack. According to Jack, Luis “was the aggressor

in the situation.” Jack testified that he had seen another instance of Luis being

physically violent with others and had heard of other occasions. Jack testified that

Charlie’s reputation for honesty was “negative[]” and “very bad.” Jack testified that

Barbara’s reputation for honesty was “[p]robably 50/50.” On cross-examination,

Jack testified that, in the incident where Jack called other workers “crybabies,” Luis

did not have a weapon, such as a gun or knife, and ultimately, they did not fight.

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Testimony of Justin Campbell

Justin Campbell testified that he was working for the Montgomery County

Sheriff’s Office on December 18, 2020, and he was one of the officers who

responded to the shooting. Campbell testified that Randy was inside the house when

he arrived, Campbell took him into custody, and they went to Campbell’s patrol

vehicle, where Randy made a statement. Based on his discussion with Randy that

night, he recalled that Randy told him Luis had reached around his back for a

weapon.

On cross-examination, Campbell testified that, at the time of trial, he was

working in construction. He agreed that on the night of the shooting, he had basic

crime scene training, but he was not trained as a crime scene investigator. Campbell

testified that he had reviewed the dash camera video from his patrol vehicle from

that night, and he recalled Randy saying that he “saw Luis reach around his back

like he was going for a weapon.” Campbell also stated “[t]hat’s what I remembered

in my head at the time [he wrote his report], and [] it’s not what’s on the video.”

State’s Exhibit 142, a recording from Campbell’s in-car camera, was admitted into

evidence and published to the jury during the defense’s case-in-chief.

Testimony of Donna

Donna testified that she worked as an administrative assistant with the

Montgomery County Justice of the Peace office and that Barbara’s oldest son is her

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cousin’s son. Donna recalled that Randy came to see her on December 18, 2020, and

he appeared “stressed, upset, [and] worried.” According to Donna, Randy showed

her and the bailiff some text messages that day, she told him to keep them for his

records, and she gave him the name of a lawyer. On cross-examination, Donna

agreed that when Randy visited her that day, he could have walked across the hall to

the Constable’s Office.

Testimony of Michael Burnett

Michael Burnett testified that he worked for the Montgomery County

Sheriff’s Office, and he was an investigator assisting Detective Kader in this case.

He recalled talking with Randy about whether Randy might have a self-defense

argument. On cross-examination, Burnett testified he was still “100 percent[]”

confident in his decision to charge Randy with murder.

Testimony of Michael Doyle

Michael Doyle testified that he was employed with the Montgomery County

Sheriff’s Department in December of 2020, when he was called to the scene of a

gunshot incident. Doyle recalled that Charlie said he had a gun in his vehicle, and

Doyle asked Charlie for the gun that Charlie had in his car. Doyle agreed that the

video depicts him telling Charlie, “make sure I get your cell phone[,]” but Doyle

testified that he did not get Charlie’s cell phone that night. Doyle agreed that when

he took Charlie’s gun that night, Doyle was not wearing gloves, and that was a

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mistake. He also agreed it was a mistake to allow Charlie to wipe his hands at the

scene.

Doyle identified Exhibit 147 as a video recording from the dash camera in his

patrol vehicle from the night of the shooting, and the exhibit was published to the

jury. In the recording, someone is heard saying, “Whatever you do, be sure you don’t

forget your cell phone [] before you leave.” Charlie is heard saying that his gun was

in his truck and that he never fired it.

Testimony of Eric Devlin

Eric Devlin testified that he is the Managing Director of the Lone State Digital

Forensic Group—a forensic company based in Houston—and he was previously a

prosecutor at the Harris County District Attorney’s Office. He agreed he was

provided copies of extractions in this case for the cell phones of Luis, Barbara, Sam,

and Randy. Devlin testified that he was concerned that the extraction Detective

Kader performed was “the shallowest form of [] forensic extraction you can do,” and

Devlin prefers to start with the deepest extraction possible and proceed to the

shallowest. Devlin also prefers to do all levels of extraction at the same time and

then return the phone, but he explained that if he has obtained the phone by consent

of the owner, there is not always the option to keep the phone long enough to perform

all extractions. Devlin testified that, in his opinion, the police should have kept any

phone for which they had not performed “the deepest possible extraction available.”

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According to Devlin, the Cellebrite software is “the gold standard when it

comes to cell phone forensics[,]” although he testified it offers “limited recovery”

because it performs only a logical extraction. According to Devlin, only a logical

extraction was performed on Luis’s phone. Devlin did not recall any issues with the

extraction performed on Barbara’s phone. Devlin recalled that Randy’s phone was

the only one in this case where the extractions went farther than “Level 1” or the

logical extraction. On cross-examination, Devlin agreed that a full extraction was

performed on the defendant’s phone.

Testimony of Charlie

Testifying for the defense, Charlie read from Defense Exhibit 1, a printout of

texts from Barbara’s phone between him and Barbara from November 29 through

December 1, 2020. He agreed he had texted Barbara, “I love you[,]” and he did not

know whether he sent that text while Barbara was in a relationship with Luis. Charlie

agreed that he and Barbara rented a hotel room on occasion, and one of the texts

from Barbara read, “Randy got told I rented a room.” Another text read, “Randy is

a goner.” Charlie agreed that he knew that Barbara was in a relationship with

someone else. Charlie testified that the “original reason” he went to Randy’s house

on December 18th was to pick up Sam, but another reason was “in case either one

of [Luis or Randy] was to fight for some reason[,] to stop it[,]” but he said that they

23
were “never there to fight.” Charlie testified that he never heard Luis say, “Come

down and fight me[.]”

On cross-examination, State’s Exhibit 144 was admitted and published to the

jury, which the State described as the audio statement Charlie made to Detective

Kader on the night of the shooting. In his statement, Charlie told the officer that he

went to Randy’s house with Barbara and Luis that night because Sam had called

Barbara and said he had “something bad” to tell her and he wanted to go home.

Charlie said that Randy invited him and Luis to approach the house, and although

there was some “tension,” there was no yelling, cursing, or violent words. In the

audio recording, Charlie states that Barbara stayed on the porch holding Sam’s hand,

Charlie did not know that Randy had a gun, and Randy kept his hands in his pockets.

Charlie can also be heard telling Kader that at some point, Randy said something

“stern” to Luis and instantly pulled out his gun, shot Luis three or four times, then

went over to Luis and continued to shoot him while Luis lay on the ground. At the

end of his statement, Charlie told Kader that Randy had been telling Barbara he was

going to give her the house “right around Christmas” and “I’m not going to be here

for you to worry about it[,]” and Charlie had personally heard Randy tell Barbara

that Randy would give Barbara the house “by Christmastime.”

24
Testimony of Michael Martinez

Michael Martinez testified that he is a forensic scientist and he was asked to

testify regarding GSR. Martinez commented on the report produced by Rebekah

Lloyd concerning Luis Ortiz’s clothing that stated, “In cases in which clothing are

analyzed outside of laboratory policy, no interpretation will be drawn[,]” and

Martinez testified that the statement was disingenuous and ambiguous because

particles were found but no conclusion was offered. He also had concerns about the

testing laboratory’s “unwritten policies,” which are “frowned upon[]” and

“arbitrary[.]” According to Martinez, although Rebekah Lloyd’s testimony indicated

that particles were detected on the sample from Barbara but were excluded because

they contained iron, zirconium, and manganese, according to the American Society

of Testing and Materials, the presence of these elements “is not a necessary concern

for exclusion of a characteristic particle.” Martinez testified that Lloyd found GSR

particles on the rear waistband of Luis Ortiz’s pants, which Martinez regarded as

consistent with someone tucking a gun they had recently fired into their waistband.

Martinez further testified that it is generally accepted that GSR particles may transfer

from one surface to another.

Martinez testified that no shot distance determination was performed in this

case and that this case was a “classic case for performing distance determination.”

25
In his opinion, Ortiz’s clothing that was taken into evidence could have been

analyzed for distance determination.

Testimony of Lisa

Lisa testified that she is married to Eddie, who is Barbara’s brother, and Randy

is her brother-in-law. She testified that on the day of the shooting, Randy was visiting

her home, they went out, where they saw Barbara and Jack, and Barbara followed

them when they went home. According to Lisa, Barbara was angry, and Barbara

threatened Randy he better “watch his back” because Luis was going to come after

him.

Testimony of Detective Jeremy Kader

A video recording of Randy’s statement to Detective Kader was published to

the jury as State’s Exhibit 146. The recording depicts Randy saying that although he

knew Charlie and Luis carried guns, he did not see a gun on the night of the shooting.

Randy also told the Detective that he told Donna that he had been getting threats. In

his statement, Randy said he pulled his gun out when Charlie stepped back and Luis

moved his hands and that he “didn’t give [Luis] a chance” because Randy had

already been threatened. Randy agreed that no one pointed a gun at him that night.

He also told Kader that he did not think the children saw what happened because

they were in the house watching TV and playing games.

26
The defense rested, and the case was submitted to the jury. The jury returned

a verdict finding the defendant guilty of murder. After a hearing on punishment, the

jury found that the defendant did not act under the immediate influence of sudden

passion arising from an adequate cause and assessed punishment at twelve years of

imprisonment. Estrada timely filed a notice of appeal.

Issues

Appellant states two issues on appeal. In his first issue, Appellant argues that

the trial court erred by denying his request for a jury instruction on defense of third

persons. In his second issue, Appellant argues that the trial court erred by conducting

a hearing outside the presence of the jury and outside the presence of defense counsel

to determine whether an empaneled juror was biased.

Jury Charge

Appellant argues that the trial court erred by denying his request for a jury

charge on defense of third person, that he suffered some harm as a result, and that

his conviction should be reversed. According to Appellant, “[t]he evidence showed

that Appellant[’s] children were right behind him on the front deck of the home”

when Ortiz called him out.

We review a claim of alleged jury charge error using a two-step process in

which we examine (1) whether error existed in the charge and (2) whether sufficient

harm resulted from the error to require reversal. Ngo v. State, 175 S.W.3d 738, 743-

27
44 (Tex. Crim. App. 2005) (en banc). Where, as here, the defendant properly

objected to the charge at trial, jury charge error requires reversal if we find “some

harm” to his rights. See id. at 743 (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex.

Crim. App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)).

The Almanza standard requires that an appellant show actual, and not theoretical,

harm from jury instruction error. Id. at 750; see also Cornet v. State, 417 S.W.3d

446, 449 (Tex. Crim. App. 2013).

Trial courts are required to instruct the jury on the law applicable to the case.

Williams v. State, 662 S.W.3d 452, 460 (Tex. Crim. App. 2021). “Regardless of the

strength or credibility of the evidence, a defendant is entitled to an instruction on any

defensive issue that is raised by the evidence.” Jordan v. State, 593 S.W.3d 340, 343

(Tex. Crim. App. 2020). “A defensive issue is raised by the evidence if there is

sufficient evidence to support a rational jury finding as to each element of the

defense.” Id. In reviewing whether the trial court erred in refusing to submit a

requested defensive instruction, we examine the evidence offered in support of the

defensive issue in the light most favorable to the defense. Id. A trial court errs by

refusing a defense of third person instruction if there is some evidence, viewed in

the light most favorable to the defendant, that will support its elements. Id.

A defendant is justified in defending a third person if, under the circumstances

as the defendant reasonably believes them to be, the third person would be justified

28
in defending himself. Morales v. State, 357 S.W.3d 1, 4 (Tex. Crim. App. 2011)

(citing Tex. Penal Code Ann. § 9.33; Hughes v. State, 719 S.W.2d 560, 564 (Tex.

Crim. App. 1986)). The self-defense statute provides that deadly force is justified if,

among other things, the actor “reasonably believes the deadly force is immediately

necessary . . . to protect [himself] against the other’s use or attempted use of unlawful

deadly force[.]” Tex. Penal Code Ann. § 9.32(a)(2)(A); Morales, 357 S.W.3d at 4.

The defendant must reasonably believe that his intervention and use of deadly force

is “immediately necessary to protect the third person[.]” See Hughes, 719 S.W.2d at

564 (emphasis in original). When there is no evidence that the victim was making

an attack or threatening an immediate attack upon a third party, the issue of defense

of third person is not raised. See Brooks v. State, 548 S.W.2d 680, 684 (Tex. Crim.

App. 1977), disapproved of on other grounds by Lugo v. State, 667 S.W.2d 144, 147

(Tex. Crim. App. 1984) (en banc); Constancio v. State, 643 S.W.2d 153, 156 (Tex.

App.—Austin 1982, no pet.); see also Valdez v. State, No. 14-22-00555-CR, 2024

Tex. App. LEXIS 829, at *11 (Tex. App.—Houston [14th Dist.] Feb. 1, 2024, no

pet.) (mem. op., not designated for publication).

In his recorded statement, Randy told Detective Kader that, during the

incident, the children were inside watching TV and playing games. Although Charlie

told Kader that Barbara was standing on the porch with the children, in Sergeant

Polansky’s body camera video, Barbara is heard telling the Sergeant that all her

29
children are inside. Barbara testified that her children were indoors during the

confrontation between Randy, Luis, and Charlie. In the audio recording from the

camera in Detective Kader’s vehicle, Barbara says that she did not think the children

heard or saw anything because they were playing PlayStation in a back room. The

recording from Sergeant Polansky’s body camera depicts the officers entering the

home after the shooting and finding the children in a back bedroom.

In his recorded statement to Detective Kader, Randy stated that no one pointed

a gun at him that night but there were verbal threats. Charlie testified that he did not

see a gun on Luis Ortiz when he rolled him onto his back after the shooting and that

neither Charlie nor Luis threatened Randy with deadly force that night. Charlie

stated his gun remained in his truck until after the shooting, and Patricia Bui testified

that none of the fired cartridges at the scene identified back to Charlie’s gun. In his

recorded statement to Detective Kader on the night of the shooting, Charlie stated

that, although there was tension that night, there was no yelling, cursing, or violent

words. In the recording from Kader’s in-vehicle camera, Barbara is heard saying that

Luis had no weapons of any kind that night.

Viewed in the light most favorable to Appellant, we conclude that the

evidence does not raise the issue that Appellant reasonably believed his intervention

with deadly force was immediately necessary to protect third persons. See Tex. Penal

Code Ann. §§ 9.32(a)(2)(A), 9.33; Brooks, 548 S.W.2d at 684 (because there was

30
no evidence that the deceased was attacking or threatening immediate attack upon a

third person, evidence could not have led defendant to reasonably believe his

intervention was immediately necessary to protect the third person); Valdez, 2024

Tex. App. LEXIS 829, at *12 (jury instruction on defense of third persons not

required where there was no evidence that the victims attacked or made any threats

to harm defendant’s family members so as to require immediate protection);

Constancio, 643 S.W.2d at 156 (“Where there is no evidence that the deceased was

making an attack or threatening an immediate attack upon a third party but was

directed only toward appellant, the issue of defense of third parties is not raised.”).

Because we conclude that the trial court did not err by denying the requested

instruction, we need not examine whether Appellant was harmed. See Ngo, 175

S.W.3d at 743-44. 3 We overrule Appellant’s first issue.

3
The jury charge included an instruction on self-defense. By rendering a
guilty verdict, the jury implicitly rejected Appellant’s claim of self-defense, so that
any error in denying a charge on defense of third person based on the same evidence
was harmless. See Sponable v. State, No. 04-17-00817-CR, 2018 Tex. App. LEXIS
10816, at *21 (Tex. App.—San Antonio Dec. 27, 2018, no pet.) (mem. op., not
designated for publication) (concluding that jury’s rejection of self-defense
“precludes the possibility that a rational jury would have nevertheless concluded his
actions were justified to protect his daughter[]”); Evans v. State, 945 S.W.2d 153,
158 (Tex. App.—El Paso 1997, no pet.) (negative jury finding on self-defense
precluded the possibility that appellant was justified in using deadly force to defend
a third person); Hernandez v. State, 914 S.W.2d 218, 224 (Tex. App.—El Paso 1996,
pet. ref’d) (“[B]ecause the jury considered and rejected Hernandez’s claim of self-
defense, any error in failing to charge the jury on defense of a third person was
harmless.”).

31
Communication with a Juror

In his second issue, Appellant argues that the trial court erred by questioning

a juror outside the presence of the jury and outside the presence of counsel to

determine whether that juror was actually biased. According to Appellant, when

there is an allegation that a juror is biased, the remedy is a hearing during which the

defendant has the opportunity to prove actual bias, and Appellant cites Smith v.

Phillips, 455 U.S. 209, 215 (1982). Appellant argues that “[b]ecause the proper

procedure for conducting a hearing regarding whether an empaneled Juror is actually

biased, namely allowing defense counsel to question the juror, was not followed,

Appellant was denied a fair and impartial jury.” Appellant further argues that “it was

incumbent on the trial court to allow defense counsel to explore the issue of bias

with the juror.” According to Appellant, when a juror withholds material information

during voir dire, the parties are denied the opportunity to exercise their challenges,

which is a violation of a defendant’s Sixth Amendment right to an impartial jury,

citing Franklin v. State, 138 S.W.3d 351, 355-56 (Tex. Crim. App. 2004).

During the trial, after the State rested and the defense had questioned two

witnesses, the trial court announced that the bailiff had received a note from Juror

No. 10 that states, “Does it matter if I know a witness?” The State recommended that

the trial court speak with the juror to determine the nature of the relationship between

the juror and the witness. The trial court asked the defense whether it objected to the

32
court making an inquiry “in-camera” into whether the juror was impartial, and the

defense objected. Defense counsel suggested that the court tell the jury that it was

sworn to uphold the oath of the jury. After some discussion at the bench, defense

counsel stated, “We object under the client’s right [under the] Sixth Amendment[,]”

and the State maintained that an inquiry was necessary. Defense counsel told the

trial court that, in an unrelated previous trial, “an inquiry was made to a jury that

resulted in a mistrial after a week-long trial[,]” and the trial court stated that it would

not make an inquiry of Juror No. 10 unless counsel for the State identified precedent

that required the court to do so.

The trial resumed, and after the defense had rested its case, the State offered

case law supporting the trial court making an inquiry of Juror No. 10, and the defense

continued to object. The trial judge expressly suggested to the defense that the trial

court could hold a hearing outside the presence of the jury on the issue, but the

defense objected to a hearing. Thereafter, the following exchange occurred:

The Court: [Defense counsel], what do you say as to [certain cases] - -

[Defense counsel]: I have read them, and I say we oppose.

The Court: What is your opinion as to those three cases?

[Defense counsel]: That they don’t apply to our situation.

The Court: So, you still believe a hearing should not be held as to the
issue of actual bias?

[Defense counsel]: Yes, ma’am.
33
The Court: Okay. And also disagreeing with the Supreme Court Case,
Smith v. Phillips?

[Defense counsel]: Yes.

The Court: Okay. And furthermore, if the withheld information has a
tendency to show bias, the trial court should hold a hearing whether the
juror is actually bias[ed]. You disagree with that, as well?

[Defense counsel]: Yes.

The Court: If the withheld information has a tendency to show bias, an
appropriate procedure is to hold a hearing at which evidence should be
[e]duced regarding whether the juror is actually bias[ed].
The Defense disagrees with that contention, as well?

[Defense counsel]: Yes, ma’am.

The Court: All right. Has the Defense brought forth any cases on this
issue that if the Court were to conduct that one-on-one inquiry with that
juror, that it would be shown as to a reversal or the standard needed for
a reversal? I have found nothing.

[Defense counsel]: Not on this issue.

The trial court then made an inquiry of Juror No. 10, outside the presence of the jury

and counsel, with the bailiff present, and on the record. The trial court asked whether

the juror’s relationship with or knowledge of the witness has caused the juror to be

biased, and the juror replied that it had not.

The jury charge included the following instructions:

You must not consider or mention any personal knowledge or
information you may have about any fact or person connected with this
case that is not evidence in the trial.
....

34
You are to render a fair and impartial verdict based on the evidence
admitted in the case under the law that is in these instructions.

After the jury returned its verdict, the defense filed a Motion for New Trial that

argued, in relevant part,

When the Court made an inquiry just prior to jury deliberation as to
whether the juror was disabled, this was an error by the Judge, as this
juror gave no indication of potential disability. After the Court’s
inquiry, and despite multiple objections from Defense Counsel, it was
affirmed that this juror was not a disabled juror.

However, the most egregious mishap in this interaction between Judge
and Juror, was the fact that either a.) the Judge provided no instruction
to the Juror to keep to himself the subject matter and details of the
Judge’s inquiry (See Juror’s Sworn Affidavit, Exhibit A) OR, b.) if the
Court Record shows that the Judge did in fact provide instructions to
the Juror to not discuss the reason for inquiry or what was discussed,
according to his Sworn Affidavit (Exhibit A), this Juror did in fact
provide those details to the Jury Panel, which would be misconduct by
the Juror.

Juror No. 10’s affidavit stated that he had known one of the witnesses about

twenty years prior. The affidavit further stated, in relevant part,

“Right before we went to deliberate on Guilt or Innocence, the Judge
spoke with me about my relationship with or connection to the Defense
witness I recognized. I did tell [the trial court] that it would not hinder
me in anyway of doing my duty as a juror.

“I do not recall her instructing me to not discuss our conversation with
the other jurors.

“After I spoke to the Judge, later in the jury room, one of the other
Jurors said ‘I didn’t think you were coming back. I think I shrugged my
shoulders and said ‘I wasn’t either.’

35
“During deliberations I did tell the other jurors the reason I was called
out but we had no real discussion and the identity of the witness was
not directly revealed.

On appeal, the State argues that Appellant failed to preserve error on this issue

because his objection at trial does not comport with the issue raised on appeal. We

agree. To preserve error for appeal, “the objecting party must still ‘let the trial judge

know what he wants, why he thinks he is entitled to it, and to do so clearly enough

for the judge to understand him at a time when the judge is in the proper position to

do something about it.’” Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.

2012). “The point of error on appeal must comport with the objection made at trial.”

Id. (citing Thomas v. State, 723 S.W.2d 696, 700 (Tex. Crim. App. 1986); see also

Ford v. State, 488 S.W.3d 350, 351 (Tex. App.—Beaumont 2016, no pet.). Even

constitutional rights may be waived by a failure to “object, move for relief, or ask

the trial court for relief before complaining about the alleged error in a later appeal.”

Sartin v. State, 680 S.W.3d 663, 667-68 (Tex. App.—Beaumont 2023, no pet.).

In this case, defense counsel took the position at trial that no inquiry of Juror

No. 10 should be made and that no hearing on the issue should be held by the trial

court to determine whether the juror was biased. However, on appeal Appellant

argues that the defense should have been permitted to examine Juror No. 10 at a

hearing for potential bias in a hearing. We conclude that Appellant waived the issue

he argues on appeal because his objection and argument on appeal do not comport

36
with his objection and argument at trial. See Tex. R. App. P. 33.1; Clark, 365 S.W.3d

at 339; Sartin, 680 S.W.3d at 667-68; Ford, 488 S.W.3d at 351.

But even assuming his objection had been preserved, we find no error. When

a juror has not withheld information during voir dire and later recognizes a witness,

the Sixth Amendment does not require that counsel be permitted to question the

juror. As the Twelfth Court has explained,

Appellant acknowledges that there is no evidence that the juror
withheld information about her familial relationship to [a witness]
during voir dire, however, he relies on Franklin v. State to argue that
“it was incumbent on the trial court to allow defense counsel to explore
the issue with the juror.” 138 S.W.3d 351, 356 (Tex. Crim. App. 2004).
In Franklin, the [C]ourt of [C]riminal [A]ppeals applied the
constitutional harm standard to a trial court’s denial of a mistrial based
on a juror’s withholding of material information. Id. at 354-57. After
the trial had begun, a juror alerted the trial court that she knew the
victim. Id. at 352. The trial court denied defense counsel’s motion for
mistrial, and further denied his request to question the juror to develop
the record on the juror’s potential bias. Id. The [C]ourt of [C]riminal
[A]ppeals held that the juror’s withholding of information, the judge’s
denial of a mistrial, and the judge’s refusal to allow defense counsel to
question the juror adversely affected the appellant’s right to a fair and
impartial trial. Id. at 357.
Appellant’s reliance on Franklin is misplaced. Because
Appellant’s trial counsel made no attempt during voir dire to ask the
venire[] whether they knew any potential witnesses, despite trial
counsel knowing the witnesses’ identities, the juror never withheld any
information. See Armstrong v. State, 897 S.W.2d 361, 363-64 (Tex.
Crim. App. 1995). Thus, Appellant argues that he has a constitutional
right to ask jurors additional questions after the start of trial if the need
arises. This proposition was specifically dispelled by the court in
Franklin. 138 S.W.3d at 358 (“But we do not hold here that Franklin
had a constitutional right to ask the juror additional questions during
trial.”)

37
Appellant offers no other authority, nor are we aware of any, that
requires a trial court to allow a defendant to question a juror, after the
start of trial, about matters he could have questioned the juror about
during his voir dire examination.

Fulton v. State, 576 S.W.3d 905, 923 (Tex. App.—Tyler 2019, pet. ref’d). In this

case there was no evidence that Juror No. 10 withheld information, nor does

Appellant provide any citations to the record to support its argument that the juror

withheld information. See Tex. R. App. P. 38.1(i) (requiring appellate briefs to cite

to the record and to applicable authority). Neither was there any evidence that

counsel asked the venire whether they knew any potential witnesses. Therefore, we

find Appellant’s argument unavailing, and we overrule Appellant’s second issue.

Having overruled both of Appellant’s issues, we affirm the trial court’s

judgment of conviction.

AFFIRMED.

LEANNE JOHNSON
Justice

Submitted on December 27, 2024
Opinion Delivered April 9, 2025
Do Not Publish

Before Johnson, Wright and Chambers, JJ.

38