Description: Luis Osorio Chavez was the foreman for a landscaping work crew that
included Lopez and Manual Duran. During a typical workday in May 2014, the
three men climbed into a truck around 2:30 p.m. to leave a work site. Chavez
was in the driver’s seat, Lopez was in the passenger’s seat, and Duran sat
While in the truck, Chavez heard Lopez say something like, “[S]o you’ll
remember,” to Duran and then heard Lopez strike Duran in the chest. Chavez
stated that Duran had said and done nothing to provoke Lopez’s attack, nor was
Chavez aware of any hostility between the two men earlier that day that might
have explained Lopez’s behavior. Chavez, seeing Lopez holding a knife, stopped
the truck, and all three climbed out. Almost immediately Duran fell to the
pavement; Lopez climbed back into the truck and took off. Now stranded, Chavez
asked bystanders to call 911.
Duran died of two stab wounds to the heart.
During the punishment trial, the jury learned that Lopez had been using
methamphetamine for two or three days before the offense and was high and
possibly hallucinating on that day. Lopez told the doctor who performed a
psychological evaluation on him that he had been eating the meth, which the
doctor thought increased the high’s intensity.
Preliminary matter: preservation of error on Lopez’s first two points
In his first point, Lopez argues that the custodial statement he gave to a
detective was admissible under Allridge v. State because it was necessary to
explain or contradict the State’s evidence. 762 S.W.2d 146, 152 (Tex. Crim. App.
1988), cert. denied, 489 U.S. 1040 (1989). In his second point, Lopez argues that
the trial court violated his due-process rights because not admitting his statement
precluded any self-defense and sudden-passion defenses.
The State maintains that Lopez’s first two points do not comport with his
objections at trial and are therefore waived. See Dixon v. State, 2 S.W.3d 263,
273 (Tex. Crim. App. 1998). Initially, then, we address whether Lopez’s appellate
arguments match his trial objections.
At trial, defense counsel argued:
We’re asking that [Lopez’s statement] be admitted before the jury. We’re asking that this testimony be admitted before the jury to the extent that . . . Al[l]ridge keeps us from presenting—from presenting
defensive information and exculpatory information. We believe the Al[l]ridge case is unconstitutional and violates due process.2
From this, Lopez did not appear to concede that Allridge kept out his proffered
evidence, but if it did, he argued that his due-process rights were violated.
That is certainly how the prosecutor and the trial court understood Lopez’s
argument. In response to Lopez’s objection, the State argued:
[Prosecutor:] The statement itself is hearsay without exception. The defendant is not crying or overly emotional to make an excited utterance. It exactly falls within the lines of Al[l]ridge. And because of that, it should be excluded by party -- or it should not be something that can be proffered by the party opponent.
THE COURT: Okay.
[Prosecutor]: It does not violate due process in that the defense still has the opportunity to present their case and the defendant is not being prohibited from the opportunity to present testimony by the court.
That is my legal response.
THE COURT: All right. I’m going to agree with the [S]tate. I’ll exclude that testimony as being self-serving. And I’m going to rely upon the Al[l]ridge case for the basis for my ruling.
We hold that Lopez’s points on appeal comport with his objections at trial—or at
least they comport with what the prosecutor and the trial court understood those
objections to have been. 2Earlier, defense counsel asserted, “I believe the [State’s] Al[l]ridge motion violates due process . . . .” Later he repeated that he thought that Allridge violated due process but added that Allridge might not even apply: “Judge, . . . we’ve asked earlier to introduce the . . . videotape with the audio because we believe Al[l]ridge violates due process. We don’t necessarily think this case falls squarely under Al[l]ridge because [it] sort of talks about time and time for reflection. And that obviously didn’t take place in this case.”
Points One and Two: exclusion of Lopez’s custodial interview
Lopez’s first two points are sufficiently intertwined that we will discuss them
somewhat together, noting as a backdrop that we review a trial court’s
evidentiary rulings under an abuse-of-discretion standard. See Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). Furthermore,
if any theory of law applicable to the case supports the ruling, we will uphold it.
See Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990).
A. The trial court properly excluded Lopez’s interview under Allridge.
Under Texas law, “self-serving declarations are not admissible in evidence
as proof of the facts asserted,” although three exceptions exist that “permit
introduction of such proof.” Allridge, 762 S.W.2d at 152. One exception is if the
statement is part of the res gestae of the offense or arrest, a second is if the
State previously introduced a part of the defendant’s statement or conversation,
and the third is if the State previously offered acts or declarations and the
defendant’s statement is necessary to explain or contradict those acts or
declarations. Id. “Unless appellant’s statements fall under any of the enumerated
exceptions, they are not admissible into evidence.” Id. We are here concerned
with only the third exception.
In discussing that final exception, the Allridge court relied specifically on
Reado v. State. Id. (citing 690 S.W.2d 15, 17 (Tex. App.—Beaumont 1984, pet.
ref'd)). Reado underscored that when a defendant does not take the stand, his
self-serving statements are not admissible merely because they contradict some
evidence that the State proffered. 690 S.W.2d at 17. The Reado court identified
the theory behind the third exception as being “to prevent the fact finder from
being misled or perceiving a false, incorrect impression when hearing only a part
of an act, declaration, conversation or, especially, a writing.” Id. “This so-called
rule of completeness” the court continued, “takes effect only when other evidence
has already been introduced but is incomplete and misleading.” Id. Most
important for our purposes is this: “A practical test for the trial court would be that
the trial judge should carefully ponder the testimony and evidence which is said
to be incomplete and then assess if there has been a misleading or mistaken
effect upon the minds of the jury or fact finder.” Id. The proffered testimony would
be admitted “only if necessary to prevent the jury from being misled or mistaken.”
Reado thus instructs that the first step is to identify the precise evidence
that the State introduced and that the defendant wants to rebut; the second step
is to determine whether that particular evidence was an incomplete portion of a
larger act, declaration, or statement; and the third step is to determine whether
that incompleteness is misleading. If so, the defendant may bring in that
evidence’s missing portion to prevent the jury from being misled.
The Reado defendant never testified but wanted to use his exculpatory
statement to explain or contradict other evidence proffered by the State—
precisely as Lopez seeks to do here. See id. The court said no: “To adopt [the
defendant’s] position would mean that all self-serving statements by an accused
would be admissible.” Id. The court noted that because the defendant did not
testify, the State could not have cross-examined him, further commenting that the
defendant’s statement did not fall under any of the rule-of-completeness
Four years after Reado, the Allridge court confirmed that “[t]he rule of
‘completeness,’ which takes effect only when other evidence has already been
introduced but is incomplete and misleading,” does not apply when the State has
not introduced any part of the defendant’s statements into evidence. Allridge,
762 S.W.2d at 153 (citing Reado); see Jones v. State, 963 S.W.2d 177,
182 (Tex. App.—Fort Worth 1998, pet. ref’d).
In Allridge, the defendant tried to get in two of his statements—the first in
which he denied being the shooter and the second in which he admitted being
the shooter but claimed that he had been startled into shooting. See Allridge,
762 S.W.2d at 151. Because the State had presented evidence that the
defendant was the shooter and that the shooting was deliberate, see id. at 149–
50, this effort was the defendant’s attempt to use his self-serving out-of-court
statements to rebut the State’s evidence—evidence, however, that in no way
relied on portions of the defendant’s statements, much less in a misleading way.
Unsurprisingly, the court of criminal appeals ruled that the trial court properly
excluded the defendant’s statements. See id. at 153; see also Lawler v. State,
110 Tex. Crim. 460, 464–71, 9 S.W.2d 259, 261–64 (1928) (op. on reh’g)
(holding that statements the defendant made to his doctor while being treated
perhaps 45 minutes after the offense—that the complainant had accidentally shot
himself while the complainant and the defendant scuffled—were not admissible
to explain or contradict other witnesses’ testimony regarding the defendant’s res
gestae statements that he had shot the complainant with the complainant’s own
In our case, Lopez contends that by introducing certain data from Duran’s
cell phone, which revealed no antagonism towards Lopez, the State opened the
door to the third exception—that is, that his custodial statement was necessary to
explain or contradict those contents of Duran’s phone that the State introduced
into evidence. We disagree. When applying the optional-completeness rule, the
first inquiry is into precisely what evidence the defendant wants to rebut. See
Reado, 690 S.W.2d at 17. Critically, Lopez is not arguing here that the State
used Duran’s phone data incompletely and in a misleading fashion.3 Using
Lopez’s exculpatory statements to directly contradict or explain Duran’s phone
data is exactly what Allridge and Reado prohibit. See Allridge, 762 S.W.2d at
153; Reado, 690 S.W.2d at 17; see also Jones, 963 S.W.2d at 182. Put simply,
there was no misleading incompleteness to correct.
3We also note that the State did not characterize the benign contents of Duran’s phone, which included photographs and videos of Duran playing the guitar, as in some way delimiting the universe of the two men’s relationship; Lopez was free to show, using admissible evidence, that animosity existed between them.
Further, we disagree that either Walters or Renteria supports Lopez’s
position, as he argues. Walters v. State, 247 S.W.3d 204 (Tex. Crim. App. 2007);
Renteria v. State, 206 S.W.3d 689 (Tex. Crim. App. 2006).
In Walters, a murder case, the defendant made a 911 call, and the
911 operator called the defendant back. 247 S.W.3d at 214–15. The State
introduced the first call but only a portion of the second call. Id. The State
stopped the 911 operator from testifying precisely at the point in the second call
where the operator had asked the defendant if he wanted to talk about what had
happened, and, in the process, the State prevented the operator from testifying
that according to the defendant, the complainant (the defendant’s brother) had
threatened him several times, including one threat to kill him. Id. at 215. The
court held that the trial court abused its discretion by preventing the admission of
the second call’s remaining portion. Id. at 220–21.
But because the defendant testified at trial and spoke of the longstanding
strife between him and his brother, the court held that the error was not
constitutional as it did not prevent the defendant from presenting his defensive
theory. Id. at 221–22. Ultimately, the court remanded the case to the court of
appeals for further proceedings. Id. at 222.4
4On remand, the court of appeals found harmful error under rule 44.2(b)— the rule governing the harm analysis for non-constitutional error. See Walters v. State, 275 S.W.3d 568, 574 (Tex. App.—Texarkana 2008, no pet.).
Unlike the prosecutor in Walters, here the State did not introduce a portion
of Lopez’s statement and prevent some remaining part from being considered by
the jury. Nor is this a case where the State introduced a portion of Duran’s
telephone data and suppressed some allegedly exculpatory portions of that data.
In Renteria, Lopez’s other case, during the punishment phase of a capital
murder trial, the State’s expert witness testified that a hypothetical defendant who
was unremorseful about killing a five-year-old girl would be a future danger to
society. 206 S.W.3d at 693–94. During final arguments, the State affirmatively
asserted that the defendant had not expressed any remorse about killing the five
year old complainant. Id. at 696–97.
But that was not true—the defendant had, in fact, expressed remorse. Id.
at 694. The State successfully kept this information from the jury.
Among other appellate complaints the defendant argued due-process
violations, complaining that the State’s questioning left a false impression that
thereby opened the door to the remorse evidence and that the evidence was
relevant as a matter of constitutional law and admissible without regard to any
evidentiary rule. Id. at 694–97. The defendant thus presented a constitutional
argument for admissibility that transcended any evidentiary rule, which is
comparable to Lopez’s second point. For its part, the State argued that the
remorse evidence was inadmissible hearsay regardless of any constitutional
relevance and denied having opened any doors. Id. at 697.
The court began by noting that the constitution does not require admitting
a defendant’s self-serving, out-of-court declarations simply because they are
relevant, if they are otherwise inadmissible under state law. Id. The starting point
is thus whether the proffered evidence is admissible under the evidentiary rules.5
From there, the Renteria court went on to determine that the defendant’s
remorseful declarations were in fact otherwise admissible. Id. at 697 (citing
Wheeler v. State, 67 S.W.3d 879, 880–85 (Tex. Crim. App. 2002) (noting a
party’s entitlement to cross-examine an expert about information the expert knew
but did not rely on)). The court held that the defendant’s remorseful statements
were not “otherwise objectionable” because the defendant was entitled to cross
examine the State’s expert about whether he was even aware that the defendant
had, in fact, expressed remorse.6 Id. at 698. Consequently, the trial court
committed an evidentiary error.
After so finding, the Renteria court held that the error rose to a
constitutional due-process level and was harmful because (1) the State opened
the door to whether the defendant was remorseful, (2) the State affirmatively
represented that the defendant was not remorseful, (3) the State prevented the
5As we note in the next section, a defendant can challenge an evidentiary rule as being constitutionally infirm in and of itself, but Lopez raises no such challenge.
6“The evidentiary caveat, however, is that the opponent must correct the ‘false impression’ through cross-examination of the witness who left the false impression, not by calling other witnesses to correct that false impression.” Wheeler, 67 S.W.3d at 885.
defendant from rebutting its evidence and argument, and (4) the “State’s claim
that [the defendant] made no out-of-court statement of remorse was not an
insignificant portion of its punishment case against [the defendant].” See id.
(citing Tex. R. App. P. 44.2(a) (providing standard for harm for constitutional
Renteria is distinguishable. The court first found error in excluding certain
evidence as a matter of state evidentiary law and then determined that the error
rose to constitutional levels when deciding whether to analyze harm under rule
44.2(b) (non-constitutional error) or under rule 44.2(a) (constitutional error). For
Renteria to apply, Lopez first must show that the trial court abused its discretion
by excluding his statement under state evidentiary law. The defendant in
Renteria could; Lopez has not, so his reliance on Renteria is misplaced.
B. The trial court’s exclusion of Lopez’s interview did not deprive him of his constitutional right to present a defense.
Our discussion above presages our resolution of Lopez’s second point, in
which he contends that the trial court’s evidentiary ruling prevented him from
presenting his defense.
Erroneous evidentiary rulings rarely rise to the level of denying a defendant
his fundamental constitutional right to present a meaningful defense. Wiley v.
State, 74 S.W.3d 399, 405 (Tex. Crim. App.), cert. denied, 537 U.S. 949 (2002).
Rulings excluding evidence might reach that level in either of two distinct
instances: (1) when a state evidentiary rule categorically and arbitrarily prohibits
a defendant from offering otherwise relevant evidence, or (2) when a trial court’s
clearly erroneous ruling excluding otherwise relevant, reliable evidence that
forms a vital portion of the defendant’s case effectively precludes him from
presenting a defense. Id. “In the first category, the constitutional infirmity is in the
arbitrary rule of evidence itself.” Id. “In the second category, the rule itself is
appropriate, but the trial court erroneously applies the rule to exclude admissible
evidence to such an extent that it effectively prevents the defendant from
presenting his defensive theory. In other words, the erroneous ruling goes to the
heart of the defense.” Id. (footnote omitted). See also Walters, 247 S.W.3d at
219 (noting that mistaken evidentiary rulings are generally non-constitutional
error except when “erroneously excluded evidence offered by the criminal
defendant ‘forms such a vital portion of the case that exclusion effectively
precludes the defendant from presenting a defense.’” (quoting Potier v. State,
68 S.W.3d 657, 665 (Tex. Crim. App. 2002))).
Because Lopez does not argue that the trial court excluded his proffered
evidence under the first category (an arbitrary evidentiary rule), for him to show a
constitutional violation falling within the second category he must initially
demonstrate that the proposed evidence was not “otherwise objectionable.” See
Renteria, 206 S.W.3d at 697. The mere fact that evidence benefits the defendant
does not, of course, give him a constitutional carte blanche to present it to the
jury; it must be “‘presented in a form acceptable to the law of evidence before he
is entitled to insist that it be received over objection.’” Id. (quoting Lewis v. State,
815 S.W.2d 560, 568 (Tex. Crim. App. 1991), cert. denied, 503 U.S. 920 (1992)).
As we explained in connection with Lopez’s first point, he has not established
any evidentiary error on the trial court’s part. Had he done so, only then would we
need to decide whether the error rose to a constitutional level. See Walters,
247 S.W.3d at 219.
C. Lopez’s alternative request to present the video interview without sound was properly denied.
As part of his second issue, Lopez also discusses his alternative trial
request to introduce the 52-minute-long video of his statement without the audio
in order to impeach the detective’s testimony that Lopez appeared “fine” during
the interview. The trial court sustained the State’s rule 403 objection that the
prejudicial effect would substantially outweigh the probative value and that it
would cause a “diffusion of the issues.” Lopez did not raise an insanity or an
involuntary-intoxication defense. See Tex. Penal Code Ann. § 8.04 (West 2011).
Furthermore, some of the behavior that Lopez’s counsel found peculiar—like
Lopez’s writing on a Kleenex box and pacing about the room—got before the jury
anyway through defense counsel’s cross-examining the detective. We hold that
the trial court was within its discretion to exclude playing a 52-minute video for
the sole purpose of impeaching the detective on a collateral issue. See Tex. R.
Evid. 403; Montgomery, 810 S.W.2d at 391. Because the trial court did not abuse
its discretion, we need not analyze whether the claimed error rose to
constitutional due-process dimensions. Walters, 247 S.W.3d at 219; Renteria,
206 S.W.3d at 697.
For the reasons set out above, we hold that the trial court acted within its
discretion by excluding Lopez’s statement and by excluding the video-only
version of his statement. See Montgomery, 810 S.W.2d at 391. We overrule
Lopez’s first and second points.
Points Three and Six: the jury charge and the absence of a self-defense or sudden-passion defense
In his third and sixth points, Lopez contends that the trial court erred by not
including self-defense and sudden passion in the charge. Relying on his
custodial statement to the detective, he contends there was evidence supporting
It has long been settled that an accused has the “right to an instruction on
any defensive issue raised by the evidence, whether that evidence is weak or
strong, unimpeached or contradicted, and regardless of what the trial court may
or may not think about the credibility of the evidence.” Granger v. State, 3 S.W.3d
36, 38 (Tex. Crim. App. 1999). But if the evidence—viewed in a light favorable to
the defendant—does not establish a defense, then an instruction is not required.
The only evidence to support submitting self-defense and sudden passion
was Lopez’s statement, which we have already found was properly excluded.
Without that statement, Lopez had no supporting evidence. See id. We overrule
Lopez’s third and sixth points.
Point Four: the propriety of the prosecutor’s argument
In point four, Lopez maintains that the trial court erroneously allowed the
prosecutor to argue outside the record. Lopez complains specifically that the
prosecutor argued the following during the punishment trial: “Renee Green told
you that [Lopez] was at that park, he was acting strange, and that little girl walked
up to him. She was crying calling for her papi, and he said, ‘Take her.’” Lopez
argues that Green never testified that he said, “Take her,” and that the
prosecutor simply fabricated evidence.
Appellate courts review a trial court’s ruling on an objection to the State’s
jury argument for an abuse of discretion. See Whitney v. State, 396 S.W.3d 696,
705 (Tex. App.—Fort Worth 2013, pet. ref’d); Montgomery v. State, 198 S.W.3d
67, 95 (Tex. App.—Fort Worth 2006, pet. ref’d). Permissible jury argument falls
within one of the following four general areas: (1) summation of the evidence,
(2) reasonable deduction from the evidence, (3) answer to argument of opposing
counsel, or (4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–
95 (Tex. Crim. App. 1992), cert. denied, 510 U.S. 829 (1993); Whitney,
396 S.W.3d at 704. When examining challenges to jury argument, appellate
courts consider the remark’s context. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.
Crim. App. 1988). Counsel is allowed wide latitude in drawing inferences from the
evidence, provided those inferences are reasonable, fair, legitimate, and offered
in good faith. Id. To constitute reversible error, a jury argument must be extreme
or manifestly improper, or inject new and harmful facts into evidence. Id.
The State’s punishment argument was based on the following testimony:
[Green]: I took my group to the park which is off Riverside and Sylvania. And I remember seeing a guy in the park with a little girl. And he was walking around looking in the grass, and the baby came to me crying. And I was getting his attention to get his daughter, which he didn’t never come get her. And –
[Prosecutor]: So the man who was in the park, what was he doing in the grass, if you saw?
[Green]: Just like looking for something in the grass and in the rocks.
[Prosecutor]: Was that behavior odd?
[Green]: Yes, ma’am.
[Prosecutor]: Did you think anything was wrong with him?
[Green]: At first I didn’t. But just watching him I did, because I didn’t understand what he could be looking for.
[Prosecutor]: And what happened with the little girl?
[Green]: She was crying for him, and he just walked off like he was leaving her. And we got his attention to come back over where she was. And he came and he pushed the baby onto me. But I told him I couldn’t take care her because I was at work.
Though Green did not testify that Lopez actually spoke the words, “Take
her,” Lopez’s act of “push[ing] the baby onto” Green certainly communicated that
message. We hold that the prosecutor’s comment summarized the evidence.
See Felder, 848 S.W.2d at 94–95. We overrule Lopez’s fourth point.
Point Five: Lopez’s prior convictions
In point five, Lopez argues that the trial court abused its discretion by
admitting records of prior convictions—State’s Exhibits 104 and 106—because
the State did not prove them by fingerprint evidence. Deputy Joel Garcia, the
State’s witness, conceded that he could not identify a specific person from the
fingerprints on those two exhibits.
As with the rulings challenged in Lopez’s first two points, this is an
evidentiary ruling that we review for abuse of discretion. Montgomery,
810 S.W.2d at 391. To show that a defendant had been previously convicted, the
State must prove that a prior conviction exists and that the defendant was the
person convicted. Flowers v. State, 220 S.W.3d 919, 921 (Tex. Crim. App. 2007).
When proving a prior conviction, the State may use any type of evidence,
documentary or testimonial. Goode v. State, No. 02–10–00465–CR,
2011 WL 4502333, at *2 (Tex. App.—Fort Worth Sept. 29, 2011, pet. ref’d)
(mem. op., not designated for publication) (citing Flowers, 220 S.W.3d at 922).
We have previously held that evidence of a unique CID (county identification
number), a full name, and a birth date suffices to link a defendant to prior
In this case, the State proved that the convictions were Lopez’s by his
unique CID, his full name, and his birth date. We overrule Lopez’s fifth point.
Outcome: Having overruled Lopez’s six points, we affirm the trial court’s judgment.