Ashley Nicole Wilson v. the State of Texas

AFFIRM AS MODIFIED; Opinion Filed May 20, 2024

S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-00119-CR

ASHLEY NICOLE WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the County Criminal Court No. 8
Dallas County, Texas
Trial Court Cause No. MA19-04281-J

MEMORANDUM OPINION
Before Justices Molberg, Nowell, and Kennedy
Opinion by Justice Kennedy
Ashley Nicole Wilson appeals her conviction for impersonating a security

officer. In three issues, appellant challenges the sufficiency of the evidence to

support her conviction, the trial court’s admission of extraneous-offense/bad-act

evidence, and the lack of any jury instruction on her mistake-of-fact defense. The

State requests modification of the judgment to reflect the correct name of the

attorney for the State. We overrule appellant’s issues and sustain the State’s cross-

issue. Accordingly, we affirm the judgment as modified. Because all issues are

settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND

Appellant had been working temporary jobs, including one that required her

to wear a t-shirt that said “security” while she passed out brochures at a convention,

when she decided she needed a career to support herself financially. Her mother

told her about a private security company seeking new employees, North Texas

Strike Force (“Strike Force”). Appellant applied and was hired in late 2018. As part

of her employment, appellant completed a 40-hour training course in December

2018. Appellant bought her own uniform, which included a jacket with “North

Texas Strike Force,” her name, and a badge on the shoulder. Appellant also

purchased a belt with a holster; she did not have a gun, but she did have empty

magazines in her holster.

On March 31, 2019, appellant was working a 12-hour shift at an apartment

complex. She was wearing the uniform and belt she had purchased and was sitting

in a parked security guard car eating her lunch. Appellant saw a naked man walking

past where she was parked in the parking lot. Appellant lowered the driver’s side

window and asked the man, later determined to be Christopher Willard, where he

was going and where he was coming from. Willard walked towards appellant where

she sat, reached through the half-open window of the car to hit her in her mouth, and

then opened the driver’s door to drag appellant out of the car. Two cars driving past

the security guard car stopped, and the drivers distracted Willard, so that appellant

was able to kick him off of her. Willard walked away from appellant, and she drove

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the security guard car out of the complex and back inside the complex while

observing where Willard was walking. Appellant informed dispatch what had

happened and when that call “somehow got disconnected,” she called the Dallas

Police Department and the owner of Strike Force, Victor Hobbs.

Soon thereafter, a firetruck and ambulance arrived, as well as Hobbs. While

waiting for emergency responders and Hobbs, appellant lost sight of Willard.

Hobbs, who was armed with a gun, and appellant walked through the complex,

looking for Willard in order to make sure no one else on the property was assaulted

by him.

Hobbs and appellant located Willard in an apartment unit. Hobbs announced

them as with Strike Force, and appellant approached the unit door, which was open

a crack, to look inside. Willard shouted to leave him alone and closed the door on

appellant’s foot. Hobbs kicked down the door to free appellant’s foot. Hobbs

attempted to subdue Willard and directed appellant to give him handcuffs. While

Hobbs was struggling to subdue Willard, appellant hit Willard with her flashlight.

Hobbs and appellant ran out of the apartment unit, and Willard chased after them,

armed with a board or table leg, which he swung at them. Victor Johnson, another

security guard, arrived and unsuccessfully attempted to stun Willard using a stun

gun. Johnson and Willard began fighting, while appellant and Hobbs told Willard

to put down the board or table leg. Willard turned and went towards Hobbs who

shot Willard. Hobbs yelled at appellant to call an ambulance. Appellant, Hobbs,

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and Johnson remained with Willard until the police arrived. The police split up the

security guards and interviewed them separately. Willard died from the gunshot

wound inflicted by Hobbs.

Appellant was charged by indictment with impersonating a security officer.

The case proceeded to trial before a jury, who found appellant guilty as charged in

the indictment. Appellant elected to be sentenced by the trial judge who imposed a

sentence of three days of confinement in jail. This appeal followed.

DISCUSSION

I. Sufficient Evidence Supports the Conviction

In her first issue, appellant challenges the sufficiency of the evidence to

support her conviction of impersonating a security officer.

When addressing a challenge to the sufficiency of the evidence, we consider

whether, after viewing all of the evidence in the light most favorable to the verdict,

any rational trier of fact could have found the essential elements of the crime beyond

a reasonable doubt. Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018)

(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979); Villa v. State, 514 S.W.3d

227, 232 (Tex. Crim. App. 2017)). This standard requires the appellate court to defer

“to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,

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

facts.” Id. (quoting Jackson, 443 U.S. at 319). We may not re-weigh the evidence

or substitute our judgment for that of the factfinder. Id. (citing Williams v. State,

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235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). The court conducting a sufficiency

review must not engage in a “divide and conquer” strategy but must consider the

cumulative force of all the evidence. Id. at 733 (quoting Villa, 514 S.W.3d at 232).

Although juries may not speculate about the meaning of facts or evidence, juries are

permitted to draw any reasonable inferences from the facts so long as each inference

is supported by the evidence presented at trial. Id. (citing Jackson, 443 U.S. at 319;

Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). We presume that the factfinder resolved

any conflicting inferences from the evidence in favor of the verdict, and we defer to

that resolution. Id. (citing Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.

2012)). This is because the jurors are the exclusive judges of the facts, the credibility

of the witnesses, and the weight to be given to the testimony. Id. (citing Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)). Direct evidence and

circumstantial evidence are equally probative, and circumstantial evidence alone

may be sufficient to uphold a conviction so long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction. Id. (citing

Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d

at 13).

We measure whether the evidence presented at trial was sufficient to support

a conviction by comparing it to “the elements of the offense as defined by the

hypothetically correct jury charge for the case.” Id. (quoting Malik v. State, 953

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S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge

is one that “accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the

State’s theories of liability, and adequately describes the particular offense for which

the defendant was tried.” Id. (quoting Malik, 953 S.W.2d at 240) (citing Daugherty

v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013)). The “law as authorized by

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

modified by the indictment. Id. (quoting Daugherty, 387 S.W.3d at 665).

Appellant argues that although the defense of mistake-of-fact was not

included in the jury charge, the hypothetically correct jury charge in this case would

include a mistake-of-fact defense. We have previously rejected a similar argument.

In Raza v. State, we noted that, “A hypothetically correct jury charge includes only

the defensive issues applicable to the case that the defendant timely requests or

objects to the omission from the jury charge. No. 05-17-00066-CR, 2018 WL

1062451, at *4 (Tex. App.—Dallas Feb. 27, 2018, no pet.) (mem. op., not designated

for publication) (citing Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App.

2010); Posey v. State, 966 S.W.2d 57, 61–62 (Tex. Crim. App. 1998)). As appellant

later concedes in her third issue challenging the lack of mistake-of-fact defense

instruction in the jury charge, she did not ask to include an instruction on mistake-

of-fact defense, nor did she object to its omission. Therefore, the mistake-of-fact

defense is not to be considered in an evaluation of the sufficiency of the evidence to

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support appellant’s conviction for impersonating a security officer. See Raza, 2018

WL 1062451, at *4 (citing Cervantes v. State, No. 07–14–00391–CR, 2015 WL

3610543, at *2 (Tex. App.—Amarillo June 9, 2015, no pet.) (mem. op., not

designated for publication); Osborne v. State, No. 07–13–00156, 2015 WL 3463047,

at *3, (Tex. App.—Amarillo May 29 2015, pet. ref’d) (mem. op., not designated for

publication); Pruiett v. State, No. 05–12–00131–CR, 2013 WL 1277861, at *2 (Tex.

App.—Dallas Feb. 25, 2013, pet. ref’d) (mem. op., not designated for publication)).

A person commits the offense of impersonating a security officer if the person

“knowingly purports to exercise any function that requires licensure as a

noncommissioned security officer or a security officer commission.” TEX. OCC.

CODE § 1702.3875. An individual acts as a security officer if the individual is

employed by a security services contractor and employed to perform the duties of a

security guard. See id. § 1702.222. The Department of Public Safety of the State of

Texas issues commissions to certain security officers and regulates security officers.

See id. § 1702.004(a)(2),(5). “Security officer commission” means an authorization

issued by the department that entitles a security officer to carry a firearm. See id.

§ 1702.002(21). The Public Safety Commission determines the qualifications of

commissioned security officers. See id. § 1702.061(c). In order to be employed as

a noncommissioned security officer, an individual must obtain the appropriate

individual license. See id. § 1702.221(b)(1)(G). “A person acts knowingly, or with

knowledge, with respect to the nature of his conduct or to circumstances surrounding

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his conduct when he is aware of the nature of his conduct or that the circumstances

exist.” TEX. PEN. CODE § 6.03(b).

Appellant concedes she was performing the duties of a noncommissioned

security officer but urges that, at the time of the offense, she believed Hobbs had

submitted her application to work as a noncommissioned security officer and that

such application had been received and accepted on the date of the offense in the

indictment, March 31, 2019, so that on that date she was licensed to be employed as

a noncommissioned security officer. In support of her argument, she relies on her

trial testimony she had completed a 40-hour training course in December 2018, that

Hobbs submitted applications to the State on behalf of the security guards and that

he had done so on her behalf, so that her application was pending on the date of the

offense and she was waiting for the State to send her a pocket card showing she was

licensed.1 According to appellant, she was under the impression that she was

licensed and allowed to work as a noncommissioned officer on the date of the

offense. The record also contains the testimony of Detective Andrea Isom with the

Dallas Police Department, the lead investigator in the death of Willard, who

interviewed appellant as part of her investigation. Portions of that interview, both

video and audio, were played for the jury, as well. Detective Isom testified she asked

appellant if she had a noncommissioned license with her, and appellant answered

1
“The department shall issue a pocket card for each individual license holder under this chapter.” OCC.
§ 1702.232(a).
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that she did and that it was active and current. The video confirms that inquiry and

response, as well as appellant’s statement that Hobbs had her license card.

However, the record also contains evidence contradicting the foregoing.

Appellant testified at trial that in November 2018, when she was considering

applying to work for Strike Force, she exchanged text messages with Hobbs about

the job qualifications to work as a security guard. Hobbs informed her that she

needed a “clean background.”2 Appellant asked whether a pending assault charge,

a misdemeanor, would “stop me from getting the job?” After asking about whether

the charge was currently pending and whether appellant knew if it will be dismissed,

Hobbs stated, “They will not let you carry a gun with pending charges” and that she

could work for him “until it’s dropped but I will have to pay you out of pocket” and

“under the table.” Appellant admitted during her testimony that she knew she was

“not supposed to get paid under the table.” Appellant also admitted that during her

deposition, which took place on January 22, 2020, she was asked whether she held

any licenses or certifications on the night of the offense, and she answered, “I was

in the—in the—on the verge of getting my—trying to send my information off to

TOPS to get my license.”

2
Applications for licensing include fees for a criminal history check fee. See OCC. § 1702.203(a)(7).
“An applicant is not eligible for a license or security officer commission issued under this chapter if the
check reveals that the applicant has committed an act that constitutes grounds for the denial of the license
or commission.” See id. § 1702.282(a). “A license or security officer commission issued by the department
is conditional on the department’s review of criminal history record information.” See id. § 1702.282(c).
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We again note that we defer to the jury “to resolve conflicts in the testimony,

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

facts.” See Zuniga, 551 S.W.3d at 733 (quoting Jackson, 443 U.S. at 319)). Further,

we presume that the factfinder resolved any conflicting inferences from the evidence

in favor of the verdict, and we defer to that resolution. Id. (citing Merritt, 368

S.W.3d at 525). The jury could have found that appellant did not believe her

application had been submitted to the State by the date of the offense. Alternatively,

the jury could have found that, even if appellant believed it had been submitted,

appellant understood, based on Hobbs’ statements concerning the need for a “clean

background,” that the State would reject her application because of the pending

assault charge against her. Although she texted Hobbs that she would know by

December 12, 2018, whether the State would dismiss the charge, appellant presented

no evidence that the assault charge was actually dismissed by the date of the offense.

We conclude sufficient evidence supports appellant’s conviction for knowingly

purporting to exercise any function that requires licensure as a noncommissioned

security officer.

We overrule appellant’s first issue.

II. No Harmful Error in Admitting Extraneous Offense Evidence

In her second issue, appellant urges the trial court committed harmful error in

admitting evidence of extraneous offenses or bad acts during the guilt–innocence

phase of trial in violation of rules 402, 403, and 404(b) of the Texas Rules of

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Evidence. More specifically, appellant complains of the admission of evidence that

she was involved in the altercation with Willard, that she struck him with her

flashlight, that the other security guard Johnson was charged with assault of Willard,

and that Hobbs was charged with Willard’s murder.

Preservation of Complaint Raised on Appeal

Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of

error, and states, in part: “[T]he record must show that (1) the complaint was made

to the trial court by a timely request, objection, or motion that: (A) stated the grounds

for the ruling that the complaining party sought from the trial court with sufficient

specificity to make the trial court aware of the complaint, unless the specific grounds

were apparent from the context.” See TEX. R. APP. P. 33.1(a)(1). Error preservation

does not involve a hyper-technical or formalistic use of words or phrases; instead,

“[s]traight forward communication in plain English” is sufficient. Pena v. State, 285

S.W.3d 459, 463 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d

907, 908–09 (Tex. Crim. App. 1992)). To avoid forfeiting a complaint on appeal,

the party must “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.” Id. at 464 (quoting

Lankston, 827 S.W.2d at 909). This gives the trial judge and the opposing party an

opportunity to correct the error. See id. Moreover, an objection must be made each

time inadmissible evidence is offered unless the complaining party obtains a running

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objection or obtains a ruling on his complaint in a hearing outside the presence of

the jury. Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008).

Whether a party’s particular complaint is preserved depends on whether the

complaint on appeal comports with the complaint made at trial. See Pena v. State,

285 S.W.3d at 464. In making this determination, we consider the context in which

the complaint was made and the parties’ shared understanding at that time. See id.

Prior to trial, defense counsel moved to limit evidence “that other people were

charged with crimes[,] that someone was shot[, and] that that same individual passed

away as a result of being shot.” Defense counsel urged such evidence was not

relevant and that the prejudice outweighed any probative value. See TEX. R. EVID.

402, 403. The trial court denied appellant’s objections, but granted defense

counsel’s request for a running objection to any such evidence. Thus, we conclude

appellant preserved her objections to the admission of evidence that other people

were charged with crimes, that someone was shot, and that that individual died from

that shooting as violating rules 402 and 403. As for her complaints regarding

evidence that she was involved in the altercation with Willard and that she struck

him with a flashlight, we note that she did not preserve any objection to that evidence

either as part of a running objection, in a hearing outside the presence of the jury, or

when such evidence was offered at trial.

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As for her complaint regarding rule 404(b),3 we note that she filed a motion

in limine to exclude any questioning or mention of “the fact that the Defendant

herein may have engaged in any extraneous offense, wrong or act before, during or

after the commission of the offense alleged in the indictment” until after a hearing

on the admissibility of such evidence had taken place. However, “a preliminary

ruling on a motion in limine does not preserve error in the admission or exclusion of

evidence.” Geuder v. State, 115 S.W.3d 11, 14 n.9 (Tex. Crim. App. 2003). Nor

does the record reveal that appellant raised any objection under rule 404(b) to that

evidence later at trial.4 Accordingly, we conclude she failed to preserve any

objection under rule 404(b).

We will now review the trial court’s decision to admit or exclude evidence

that other people were charged with crimes, that someone was shot, and that that

individual died from that shooting. We review this decision under an abuse of

discretion standard. De La Garza v. State, No. 05-09-00854-CR, 2011 WL 768872,

at *1 (Tex. App.—Dallas Mar. 7, 2011, no pet.) (not designated for publication)

(citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). We reverse

only when the judge’s decision was so clearly wrong as to lie outside the zone of

3
Rule 404(b) prohibits “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s
character in order to show that on a particular occasion the person acted in accordance with the character.”
See TEX. R. EVID. 404(b)(1).
4
Appellant objected to the evidence that she had a pending misdemeanor assault charge, which was
raised during discussion of her text messages with Hobbs prior to her employment with Strike Force. She
does not argue admission of that evidence was erroneous on appeal, however.
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reasonable disagreement, and we uphold the ruling if it was correct on any theory

reasonably supported by the evidence and applicable to the case. See id. (citing

Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003); Willover v. State, 70

S.W.3d 841, 845 (Tex. Crim. App. 2002)). This is so even if the trial judge gives

the wrong reason for the decision. See id. (citing Laney, 117 S.W.3d at 857). We

review the trial court’s evidentiary ruling in light of the evidence that was before the

trial court at the time the ruling was made. See id. (citing Weatherred v. State, 15

S.W.3d 540, 542 (Tex. Crim. App. 2000)).

Analysis

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. Irrelevant evidence is inadmissible.

TEX. R. EVID. 402. The 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.

Appellant urges that evidence that other people were charged with crimes, that

someone was shot, and that that individual died from that shooting was not necessary

to establish evidence of the offense for which she was on trial: “knowingly

purport[ing] to exercise any function that requires licensure as a noncommissioned

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security officer or a security officer commission.” See OCC. § 1702.3875. More

specifically, she complains of the prosecutor’s opening statement:

Now, we are here because of a murder. The fact that we know that
Ashley Nicole Wilson was not a noncommissioned—a licensed
noncommissioned officer in the state of Texas is because of a murder
investigation.

Now, we’re not litigating the facts of the murder here today. We’re
primarily going to be concerned with what Ashley Nicole Wilson was
doing on the night that this murder took place.

That being said, you’re going to hear evidence that talks about the
murder.

Appellant also complains of certain testimony of Detective Isom, the lead

investigator in the death of Willard, who interviewed appellant as part of her

investigation. Portions of that interview were played for the jury, as well. During

the State’s examination of Detective Isom, the prosecutor stated that Hobbs was

arrested for the murder of Willard and questioned the detective about appellant’s

statements in the interview video, in particular appellant’s actions in searching for

and attempting to restrain Willard, as well as Hobbs’ shooting and killing of Willard.

In the video played for the jury, the detective questioned appellant about the events

of that night, beginning with Willard’s assault of her and continuing with appellant’s

and Hobbs’ interactions with Willard, including Hobbs’ shooting of Willard.

Additionally, near the conclusion of the video interview, the detective informed

appellant that Willard had later died and that Hobbs was being charged with

Willard’s murder.

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Assuming without deciding the trial court erred by admitting the complained-

of portions of the prosecutor’s opening statement and questions, Detective Isom’s

testimony, and appellant’s video statements, we conclude any error is harmless. The

erroneous admission of evidence is non-constitutional error. Foster v. State, 525

S.W.3d 898, 909 (Tex. App.—Dallas 2017, pet. ref’d) (citing Coble v. State, 330

S.W.3d 253, 280 (Tex. Crim. App. 2010)). Accordingly, any error must be

disregarded unless it affected appellant’s substantial rights. See TEX. R. APP. P.

44.2(b). Substantial rights are not affected if, after examining the record as a whole,

we have fair assurance that the error did not influence the jury or had but a slight

effect. Foster, 525 S.W.3d at 909 (Solomon v. State, 49 S.W.3d 356, 365 (Tex.

Crim. App. 2001)).

In assessing the likelihood the jury’s decision was adversely affected by the

error, we consider everything in the record, including any testimony or physical

evidence admitted for the jury’s consideration, the nature of the evidence supporting

the verdict, the character of the alleged error, and how the error might be considered

in connection with other evidence in the case. Foster, 525 S.W.3d at 909 (citing

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v. State, 63

S.W.3d 442, 444–45 (Tex. Crim. App. 2001)). We examine the entire trial record

and calculate, as much as possible, the probable impact of the error upon the rest of

the evidence. Foster, 525 S.W.3d at 909 (citing Coble, 330 S.W.3d at 280).

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We have examined the record and have a “fair assurance” the admission of

the preserved complained-of evidence did not influence the jury or had but a slight

effect. Appellant complains the admission of this evidence caused the jury to make

an emotional decision that was not based on the testimony and evidence concerning

the instant offense but instead on the improper basis of the alleged offenses of

aggravated assault and murder. But, as appellant appears to concede on appeal, the

evidence that she was “exercising any function that requires licensure as a

noncommissioned security officer or a security officer commission” was undisputed;

she disputed whether she knew she was not so licensed at the time of the alleged

offense. The evidence showed she was patrolling in a security guard car, wearing a

uniform that had “North Texas Strike Force,” her name, and a badge on the shoulder,

a utility belt with a gun holster, a flashlight, mace, and two sets of handcuffs.

Appellant was with Hobbs when Hobbs announced them to Willard as with Strike

Force. Thus, the only disputed evidence was whether appellant was knowingly

purporting to exercise any function that requires licensure as a noncommissioned

security officer. It is difficult to conclude how knowledge that Hobbs shot and killed

Willard and that he and Johnson were charged with murder and aggravated assault,

respectively, would affect a jury’s decision on whether appellant knew she was

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licensed to work as a security guard at the time of the offense. Accordingly, we

conclude any error did not affect the jury or had but slight effect on its verdict.5

We overrule appellant’s second issue.

III. No Error in Not Instructing Jury on Appellant’s Mistake-of-Fact Defense

In her third issue, appellant urges the trial court committed reversible error in

failing to instruct the jury on her mistake-of-fact defense.

“It is a defense to prosecution that the actor through mistake formed a

reasonable belief about a matter of fact if his mistaken belief negated the kind of

culpability required for commission of the offense.” TEX. PENAL CODE § 8.02(a).

Thus, this defense applies when the defendant’s mistaken belief, if accepted as true,

negates the culpable mental state for the crime charged. Guyger v. State, No. 05-19-

01236-CR, 2021 WL 5356043, at *4 (Tex. App.—Dallas Nov. 17, 2021, pet. ref’d)

(not designated for publication) (citing Granger v. State, 3 S.W.3d 36, 41 (Tex.

Crim. App. 1999)).

Appellant acknowledges she did not request an instruction on mistake of

fact—nor did defense counsel object to any such omission, but she argues the trial

court should have sua sponte provided an instruction to the jury based upon the facts

and evidence that she presented at trial. The State responds that mistake of fact is a

5
As for the sentence, any error in admitting the complained-of evidence could not have affected the
jury because she elected to be sentenced by the trial judge.
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defense that must be requested to be included in the charge. See Thomas v. State,

236 S.W.3d 787, 800 (Tex. Crim. App. 2007). We agree with the State.

A defendant cannot complain on appeal about the trial judge’s failure to

include a defensive instruction that he did not preserve by request or objection: he

has procedurally defaulted any such complaint. Turner v. State, 626 S.W.3d 88, 100

(Tex. App.—Dallas 2021, no pet.) (citing Vega v. State, 394 S.W.3d 514, 519 (Tex.

Crim. App. 2013); Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998)); see

also Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (noting the Posey

court said Article 36.14 of Texas Code of Criminal Procedure imposes no “duty on

trial courts to sua sponte instruct the jury on unrequested defensive issues” such as

mistake of fact).

Because appellant failed to preserve her complaint, we overrule appellant’s

third issue.

MODIFICATION OF THE JUDGMENT

In a single cross-issue, the State requests that this Court modify the judgment

to correct the name of the attorney for the State. The record reflects that Patrick

Capetillo appeared at trial on behalf of the State, but the judgment lists as “Attorney

for State: Omoniyi Olayiwola.” We may modify a trial court’s written judgment if

the necessary information to do so is contained in the record. TEX. R. APP. P.

43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v.

State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly,

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we modify the judgment to delete “Omoniyi Olayiwola” and insert “Patrick

Capetillo” as “Attorney for State.”

CONCLUSION

We modify the judgment to delete “Omoniyi Olayiwola” and insert “Patrick

Capetillo” as “Attorney for State.” We affirm the judgment as so modified.

/Nancy Kennedy/
NANCY KENNEDY
JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47
230119F.U05

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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ASHLEY NICOLE WILSON, On Appeal from the County Criminal
Appellant Court No. 8, Dallas County, Texas
Trial Court Cause No. MA19-04281-
No. 05-23-00119-CR V. J.
Opinion delivered by Justice
THE STATE OF TEXAS, Appellee Kennedy. Justices Molberg and
Nowell participating.

Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
We modify the judgment to delete “Omoniyi Olayiwola” and insert
“Patrick Capetillo” as “Attorney for State.”

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 20th day of May, 2024

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