Daniel Ray Garcia v. the State of Texas

Opinion filed July 25, 2024

In The

Eleventh Court of Appeals
__________

No. 11-21-00145-CR
__________

DANIEL RAY GARCIA, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 106th District Court
Gaines County, Texas
Trial Court Cause No. 19-5086

MEMORANDUM OPINION
The jury convicted Daniel Ray Garcia of aggravated assault against a public
servant, a first-degree felony, and assessed his punishment at confinement for life in
the Institutional Division of the Texas Department of Criminal Justice. See TEX.
PENAL CODE ANN. § 22.02(a)(2), (b)(2)(B) (West Supp. 2023). Appellant, appearing
pro se, both at trial and on appeal, filed a handwritten brief presenting nineteen
discernible complaints within his four stated issues. After diligently considering and
liberally construing his pro se briefing, we will address each of his appellate
complaints. To the extent Appellant has attempted to raise issues in his brief other
than those addressed in this opinion, including his unsubstantiated claims of
corruption and alteration of the record and exhibits, we hold that those issues
have been waived as inadequately briefed and we overrule them. See TEX. R.
APP. P. 38.1(i); see also Tong v. State, 25 S.W.3d 707, 710 (Tex. Crim. App. 2000),
cert. denied, 532 U.S. 1053 (2001); Heiselbetz v. State, 906 S.W.2d 500, 512 (Tex.
Crim. App. 1995) (“From appellant’s brief, we cannot discern his specific
arguments, and we will not brief appellant’s case for him.”). We affirm the judgment
of the trial court.
Background Facts
On April 29, 2019, Seagraves Police Officer Matthew Zalewski was on patrol
in his marked vehicle. Around 7:00 p.m., he attempted to stop Appellant for
speeding through a residential area and a window-tint violation. See TEX. TRANSP.
CODE ANN. § 547.613(b)(2-a)(13) (West 2022). He had had previous contact with
Appellant, had reason to believe that Appellant would be in the Seagraves area, and
had previously checked out and confirmed that Appellant had outstanding warrants.
Appellant briefly pulled over and rolled down his window but accelerated when
Officer Zalewski’s patrol vehicle stopped behind him. Officer Zalewski followed
Appellant for another block. Appellant stopped again, then sped away when Officer
Zalewski told Appellant to put his hands out of the driver’s-side window.
Approximately thirty seconds later, Appellant came to a final halt, quickly
exited his pickup, and fired at least four gunshots at Officer Zalewski while
advancing toward him. Officer Zalewski testified that he noticed three bullet holes
in his vehicle window before he realized Appellant was shooting at him. He returned

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fire and was able to escape. Appellant shot Officer Zalewski twice in the forearm,
twice in the bicep, once in the shoulder, and twice in his bulletproof vest—near his
heart and his kidney.
Officer Zalewski radioed for an ambulance as he drove to a safe location and
was eventually airlifted to University Medical Center in Lubbock, Texas. He
suffered permanent muscle atrophy, permanent damage in three nerves, the loss of
feeling in two fingers, and permanent damage to his neck and back as a result of the
shooting.
At trial, the State played the recording from Officer Zalewski’s dashcam,
which captured the entire incident. The jury found Appellant guilty of aggravated
assault against a public servant and sentenced him to life imprisonment in the
Institutional Division of the Texas Department of Criminal Justice.
Analysis
Sufficiency of the Evidence
In Appellant’s nineteenth issue, he asserts that the evidence is insufficient to
sustain his conviction, and that he acted in self-defense. We construe this as a
challenge to the sufficiency of the evidence to support the jury’s rejection of his self-
defense claim. See, e.g., Warren v. State, 430 S.W.2d 215, 216 (Tex. Crim. App.
1968); Muhammed v. State, 331 S.W.3d 187, 191 (Tex. App—Houston [14th Dist.]
2011, pet. ref’d).
Self-defense is a fact issue to be determined by the jury, and a jury’s verdict
of guilt is an implicit finding that it rejected a defendant’s self-defense theory.
Saxton v. State, 804 S.W.2d 910, 913–14 (Tex. Crim. App. 1991). For self-defense
claims, the defendant has the burden of producing some evidence to support the
claim. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003); see also Saxton,
804 S.W.2d at 913–14 (contrasting self-defense from affirmative defenses and

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explaining how burdens shift for self-defense). If the defendant produces some
evidence, the State has “the burden of persuasion to disprove the raised defense.”
Zuliani, 97 S.W.3d at 594. The State’s burden does not require the production of
any additional evidence; instead, “it requires only that the State prove its case beyond
a reasonable doubt.” Id.; see Saxton, 804 S.W.2d at 913. “Because the State bears
the burden of persuasion to disprove” a claim of self-defense “by establishing its
case beyond a reasonable doubt, we review both legal and factual sufficiency
challenges to the jury’s rejection of such a defense under” the legal sufficiency
standard. Smith v. State, 355 S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d).
We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). Thus, when reviewing the sufficiency of the evidence to
support a conviction involving a claim of self-defense, we review the sufficiency of
the evidence to support a jury’s rejection of a defendant’s self-defense theory by
examining all the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the
offense and also could have found against the defendant on the self-defense issue
beyond a reasonable doubt. Saxton, 804 S.W.2d at 914 (citing Jackson, 443 U.S.
307).

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When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict and defer to
that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
The State proceeded on the first count of the indictment, which charged
Appellant with aggravated assault against a public servant. As applicable to this
case, a person commits aggravated assault against a public servant if the person
intentionally, knowingly, or recklessly causes bodily injury to a person the actor
knows is a public servant while the public servant is lawfully discharging an official
duty, and the person uses or exhibits a deadly weapon during the commission of the
assault. PENAL §§ 22.01(a)(1), 22.02(a)(2), (b)(2)(B). Appellant has never disputed
that he used a firearm, that Officer Zalewski was a police officer acting in his official
capacity, or that Officer Zalewski suffered bodily injury. And although Appellant
argued at trial that Officer Zalewski’s bullet wounds could have been caused by his
own gunshots ricocheting off the door of his patrol vehicle, he ultimately admitted
to firing his weapon at Officer Zalewski. Therefore, the only sufficiency issue is
whether the evidence supports the jury’s rejection of Appellant’s claim of self-
defense. See Braughton v. State, 569 S.W.3d 592, 609 (Tex. Crim. App. 2018). We
conclude that it does.

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An individual “is justified in using force against another when and to the
degree the actor reasonably believes the force is immediately necessary to protect
the actor against the other’s use or attempted use of unlawful force.” PENAL
§ 9.31(a) (West 2019). Furthermore, an individual “is justified in using deadly force
against another . . . if the actor would be justified in using force against the other”
and “when and to the degree the actor reasonably believes the deadly force is
immediately necessary . . . to protect the actor against the other’s use or attempted
use of unlawful deadly force.” Id. § 9.32(a). “‘Deadly force’ means force that is
intended or known by the actor to cause, or in the manner of its use or intended use
is capable of causing, death or serious bodily injury.” Id. § 9.01(3). A reasonable
belief is a belief that would be held by an ordinary and prudent person in the same
circumstances as the actor. Id. § 1.07(a)(42).
Here, Officer Zalewski’s testimony established all the elements of the offense.
He told the jury that Appellant shot him multiple times with a firearm, which caused
him permanent injuries, while he was wearing his police uniform and driving a
marked patrol vehicle. See PENAL §§ 1.07(17)(A), 22.02(a)(2), (b)(2)(B). Appellant
never expressly admitted to shooting Officer Zalewski, but testified he feared for his
life, and “did what [he] did, and [he] protected [his] life in self-defense.” The jury
also saw Officer Zalewski’s dashcam video, which undeniably depicts Appellant
shooting in Officer Zalewski’s direction. It is undisputed that Appellant used a
deadly weapon and fired it at Officer Zalewski.
The only evidence supporting Appellant’s self-defense claim was his own
testimony. As such, his theory of self-defense was inherently a credibility question
for the jury to resolve. The credibility of Appellant’s self-defense testimony was
solely within the jury’s province to determine, and the jurors were free to reject it.
See Saxton, 804 S.W.2d at 914; see also Braughton, 569 S.W.3d at 611–13.

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In addition to Appellant’s assertion that he feared for his life, he said that he
heard sirens, and saw “this cop pulling the gun out on me.” Officer Zalewski
explained that he drew his department-issued firearm during the second momentary
stop as he told Appellant to put his hands out the window because Appellant “had
possible felony warrants,” and “had also evaded” once. And the third time Appellant
pulled over and started shooting, Officer Zalewski had not gotten out of his car.
Officer Zalewski’s dashcam video corroborates his testimony, which showed
Appellant firing several shots within a second after exiting his pickup and before
Officer Zalewski’s car came to a complete stop. Dimitry Norton, who was in his
front yard with his daughters that evening, testified that he saw Appellant “getting
out of a pickup with a firearm facing an officer.” Based on the record, we conclude
the jury could have reasonably found all the elements of aggravated assault against
a public servant beyond a reasonable doubt, and that Appellant fired the first shots
at Officer Zalewski, thus finding against him on the self-defense issue beyond a
reasonable doubt. See Braughton, 569 S.W.3d at 609. We overrule Appellant’s
nineteenth issue.
Traffic Stop and Arrest Warrant for Attempted Capital Murder
In his first four issues, Appellant challenges the trial court’s denial of his
motion to suppress. He contests the legality of the traffic stop, and the existence or
validity of his outstanding warrants. Appellant further alleges that his arrest warrant
and a search warrant were invalid. We will address each issue, beginning with the
traffic stop, which is the first issue he sets forth in his brief, and the arrest warrant,
his third issue.
“We review a trial court’s ruling on a motion to suppress under a bifurcated
standard.” State v. Arellano, 600 S.W.3d 53, 57 (Tex. Crim. App. 2020). “We afford
almost total deference to a trial court’s findings of historical fact and determinations

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of mixed questions of law and fact that turn on credibility and demeanor if they are
reasonably supported by the record.” Id. “We review de novo a trial court’s
determination of legal questions and its application of the law to facts that do not
turn upon a determination of witness credibility and demeanor.” Id. “The trial
court’s ruling will be sustained if it is correct on any applicable theory of law and
the record reasonably supports it.” Id.
When the record is silent as to the reasons for the trial court’s ruling, we infer
the necessary fact findings that would support the trial court’s ruling if the evidence,
viewed in the light most favorable to the trial court’s ruling, supports those findings.
State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008). Here, the trial
court found only that “legally there was probable cause for the officer to begin the
arrest,” and denied Appellant’s motion to suppress. In our review, we determine
whether the evidence, when viewed in the light most favorable to the trial court’s
ruling, supports that finding. See State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim.
App. 2006).
“An officer may make a warrantless traffic stop if the ‘reasonable suspicion’
standard is satisfied.” Jaganathan v. State, 479 S.W.3d 244, 247 (Tex. Crim. App.
2015). “Reasonable suspicion exists if the officer has ‘specific articulable facts that,
when combined with rational inferences from those facts, would lead him to
reasonably suspect that a particular person has engaged or is (or soon will be)
engaging in criminal activity.’” Id. (quoting Abney v. State, 394 S.W.3d 542, 548
(Tex. Crim. App. 2013)). The likelihood of criminal activity required for reasonable
suspicion need not rise to the level required for probable cause. State v. Kerwick,
393 S.W.3d 270, 273–74 (Tex. Crim. App. 2013). The reasonable-suspicion
standard requires only “some minimal level of objective justification” for the stop.
Hamal v. State, 390 S.W.3d 302, 306 (Tex. Crim. App. 2012) (quoting Foster v.

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State, 326 S.W.3d 609, 614 (Tex. Crim. App. 2010)). This is an objective inquiry
that disregards the subjective intent of the officer and looks, instead, to whether an
objectively justifiable basis for the detention existed. Derichsweiler v. State, 348
S.W.3d 906, 914 (Tex. Crim. App. 2011).
An initial computer check that reveals that a vehicle’s driver may have
outstanding warrants contributes to reasonable suspicion for a traffic stop. See
Gomez v. State, 234 S.W.3d 696, 701 (Tex. App.—Amarillo 2007, no pet.); see also
Beaudoin v. State, No. 01-10-00058-CR, 2011 WL 3612285, at *3 (Tex. App.—
Houston [1st Dist.] Aug. 18, 2011, no pet.) (mem. op., not designated for
publication) (“[T]he police officers’ initial computer search revealed one of
appellant’s outstanding warrants and provided reasonable suspicion for the initial
stop.”).
At the suppression hearing, Appellant testified that Officer Zalewski had no
confirmation for his warrants and could not have known Appellant was driving the
pickup; he also argued he did not commit traffic violations. On cross-examination,
Appellant admitted to being on community supervision in Gaines County for
aggravated assault with a deadly weapon and to having four charges pending in April
of 2019. The application to revoke Appellant’s community supervision filed on
December 14, 2018 and the accompanying arrest warrant were admitted into
evidence. Appellant played Officer Zalewski’s dashcam video of the traffic stop and
introduced Officer Zalewski’s written statement that detailed the incident.
According to Officer Zalewski’s written statement, he was on routine patrol,
and made the following observations leading to his decision to stop Appellant: (1) he
perceived a window tint “so dark that [he] could not see the silhouette of anyone
inside the pickup”; (2) “the pickup appeared to be speeding”; (3) the registration
information on the pickup “returned to a Lamesa, Texas address,” and he had

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information Appellant was living in Lamesa; and (4) he “was aware that
[Appellant]” was “a wanted fugitive with multiple felony warrants.”
Based on the totality of the circumstances, Officer Zalewski articulated
sufficiently specific facts that amounted to reasonable suspicion. See Jaganathan,
479 S.W.3d at 247. A police officer’s reasonable suspicion to believe that a traffic
violation has occurred justifies stopping a vehicle. Lerma v. State, 543 S.W.3d 184,
190 (Tex. Crim. App. 2018). Here, Appellant could have been stopped on suspicion
of speeding alone. See TRANSP. § 545.352. Moreover, Officer Zalewski’s
knowledge of Appellant’s outstanding warrants gave him, at the very least,
reasonable suspicion to detain and investigate Appellant. See Haley v. State, 480
S.W.2d 644, 645 (Tex. Crim. App. 1972) (stating that probable cause “clearly
existed” for arrest when warrant check revealed outstanding warrants); Brooks v.
State, 76 S.W.3d 426, 434 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“[T]he
fact that appellant had several outstanding warrants gave the officers probable cause
to arrest him.”). Because Officer Zalewski had an objectively justifiable basis for
the initial detention, the traffic stop did not violate Appellant’s Fourth Amendment
protection against unreasonable seizures. See Derichsweiler, 348 S.W.3d at 914.
In his third issue, Appellant contends he was arrested without probable cause.
For this issue, he points to the date discrepancy between the probable cause affidavit
that was signed on April 30, 2019, and the typed date on the arrest warrant that is a
day earlier—“the 29th day of April, 2019.” Article 15.02 of the Texas Code of
Criminal Procedure requires an arrest warrant to: (1) specify the name of the person
whose arrest is ordered; (2) state that the person is accused of some offense against
the laws of the State, naming the offense; and (3) be signed by a magistrate. TEX.
CODE CRIM. PROC. ANN. art. 15.02 (West 2015). The complaint or affidavit in
support of the arrest warrant must: (1) state the name of the accused; (2) show that

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the accused has committed an offense; (3) state the time and place of the commission
of the offense; and (4) be signed by the affiant. CRIM. PROC. art. 15.05.
“[P]urely technical discrepancies in dates or times do not automatically vitiate
the validity of search or arrest warrants.” Green v. State, 799 S.W.2d 756, 759 (Tex.
Crim. App. 1990); see also State v. Baldwin, 664 S.W.3d 122, 125 n.1 (Tex. Crim.
App. 2022); Arellano, 600 S.W.3d at 60–61 (holding that a warrant containing an
illegible magistrate’s signature in violation of Article 18.04(5) does not preclude the
application of the statutory good-faith exception in Article 38.23(b)). When
technical defects are at issue, the State can offer explanatory testimony to show the
defect is purely technical or clerical. Somoza v. State, 481 S.W.3d 693, 701 (Tex.
App.—Houston [1st Dist.] 2015, no pet.).
Appellant first raised this issue during a pretrial conference before a visiting
judge and asked the judge to review the warrant and probable cause affidavit. Upon
inspection, the judge found the warrant and affidavit to be “in proper form.” At the
suppression hearing, the State offered no explanation for the date discrepancy, but
Texas Ranger Terry Eaton confirmed at trial that the typed date on the warrant is “a
typo or misprint,” and the warrant and probable cause affidavit were signed on
April 30, 2019.
Despite the typographical error, the warrant and probable cause affidavit
comply with the requirements of Chapter 15 of the Code of Criminal Procedure. See
CRIM. PROC. arts. 15.02–.05. And even had there been a defect, the warrant was
facially valid in that it was “on its face . . . issued by a neutral magistrate and . . .
supported by probable cause.” Arrellano, 600 S.W.3d at 60. Hence, the trial court
could have reasonably determined that Ranger Eaton acted in objective good faith
reliance upon a warrant issued by a neutral magistrate based on probable cause when
executing Appellant’s arrest warrant notwithstanding the typographical error. See

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CRIM. PROC. art. 38.23(b); Arellano, 600 S.W.3d at 60–61; Dunn v. State, 951
S.W.2d 478, 479 (Tex. Crim. App. 1997) (finding Article 38.23(b)’s good-faith
exception was not automatically precluded when the magistrate inadvertently failed
to sign the defendant’s arrest warrant). We find no error in the trial court’s denial of
Appellant’s motion to suppress.
Arrest Warrant on Application to Revoke Community Supervision
Appellant argues in his second issue that the arrest warrant accompanying the
State’s application for revocation was invalid based on the timing of its execution
and filing. In part, Appellant complains of a warrant form clearly pre-generated with
2018 dates, and ignores the handwritten correction, “2019,” on the return of service.
Appellant further argues that the warrant was “invalid” due to the return predating
its issuance. But he disregards the written detail of the warrant apparent on the face
thereof and cites no authority—and we find none—supporting the proposition that
the arrest warrant was invalid under these circumstances. See TEX. R. APP. P. 38.1(i)
(brief must contain “clear and concise” arguments with “appropriate citations to
authorities”); Gonzalez v. State, 616 S.W.3d 585, 587 (Tex. Crim. App. 2020)
(arguments inadequately briefed where appellant merely cited the Sixth and Eighth
Amendments and “various Texas constitutional provisions”).
Moreover, Appellant did not object to the timing of the arrest warrant before
the trial court, thereby failing to preserve this issue for our review. Generally, to
preserve a complaint for appellate review, a party must make a contemporaneous
request, objection, or motion in the trial court. TEX. R. APP. P. 33.1(a)(1); see
Burg v. State, 592 S.W.3d 444, 448–49 (Tex. Crim. App. 2020) (citing TEX. R.
APP. P. 33.1(a)). Because Appellant did not object to the timing or execution of the
arrest warrant when the trial court had the opportunity to make a ruling, he did not
preserve this issue for appellate review. We overrule Appellant’s second issue.

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Search Warrant
In Appellant’s fourth issue, he challenges the validity of the search warrant
for his buccal swabs due to the probable cause affidavit being sworn before a notary
in lieu of a judge. Ranger Eaton signed the affidavit, which included a written oath,
“before” a notary. See Clay v. State, 391 S.W.3d 94, 98–99 (Tex. Crim. App. 2013)
(“[T]his Court has held for the better part of a hundred years that, before a written
statement in support of a search warrant will constitute a ‘sworn affidavit,’ the
necessary oath must be administered ‘before’ a magistrate or other qualified
officer.”); TEX. GOV’T CODE ANN. § 602.002(5) (West Supp. 2023) (authorizing a
notary public to administer oaths). However, because the State did not offer
evidence obtained by the search warrant at trial, deciding this issue would be
rendering an impermissible advisory opinion. See Dix v. State, 289 S.W.3d 333, 335
(Tex. App.—Eastland 2009, pet. ref’d) (citing Morrow v. Corbin, 62 S.W.2d 641,
644 (Tex. 1933)).
The Texas Rules of Appellate Procedure require courts of appeals to address
“every issue raised and necessary to final disposition of the appeal.” TEX. R.
APP. P. 47.1. An advisory opinion is “one which adjudicates nothing and is binding
on no one.” Whitfield v. State, 430 S.W.3d 405, 421 (Tex. Crim. App. 2014) (Alcala,
J., concurring) (internal quotation marks omitted). Deciding an issue that is
unnecessary to the disposition of a case is advisory in nature. Dix, 289 S.W.3d at
335. Texas courts are without constitutional or statutory authority to render advisory
opinions. Pfeiffer v. State, 363 S.W.3d 594, 601 (Tex. Crim. App. 2012);
Armstrong v. State, 805 S.W.2d 791, 794 (Tex. Crim. App. 1991). Because ruling
on the validity of the search warrant would have no remedial effect on the outcome
of Appellant’s case, we decline to do so.

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Having addressed all dispositive Fourth Amendment issues preserved, we
overrule Appellant’s first, third, and fourth issues.
Appointments of Experts
In Appellant’s fifth issue, citing Ake v. Oklahoma, 470 U.S. 68 (1985), he
contends that the trial court did not appoint an investigator and experts in a timely
manner.
When necessary, the State must appoint an expert to aid an indigent defendant;
though the State need not “purchase for the indigent defendant all the assistance that
his wealthier counterparts might buy,” it must provide “the basic tools” to present
the defense. Ex parte Briggs, 187 S.W.3d 458, 468 n.26 (Tex. Crim. App. 2005)
(quoting Ake, 470 U.S. at 77). We review a trial court’s ruling on an Ake motion
under an abuse of discretion standard. Griffith v. State, 983 S.W.2d 282, 287 (Tex.
Crim. App. 1998). The authorization of additional funds is within the sound
discretion of the trial court, and there is no abuse of discretion without a showing of
some specific need for a particular expert, or how the defendant will be harmed
unless the funds are approved. See Castillo v. State, 739 S.W.2d 280, 294 (Tex.
Crim. App. 1987); Banks v. State, No. 11-18-00337-CR, 2020 WL 7863333, at *5
(Tex. App.—Eastland 2020, pet. ref’d). (mem. op., not designated for publication).
Appellant cites to no authority and points to nothing in the record to support
his contention. Consequently, this issue is inadequately briefed and unsupported by
the record. See TEX. R. APP. P. 38.1(i); Gonzalez, 616 S.W.3d at 587; Wolfe v. State,
509 S.W.3d 325, 342–43 (Tex. Crim. App. 2017) (noting that we have no obligation
to make an appellant’s argument for him); Lucio v. State, 353 S.W.3d 873, 877–78
(Tex. Crim. App. 2011) (finding a point of error inadequately briefed where the brief
contains a single-sentence assertion and is unaccompanied by any other argument or
authorities); Murphy v. State, 112 S.W.3d 592, 596 (Tex. Crim. App. 2003)

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(“[B]ecause appellant does not argue that the Texas Constitution provides, or should
provide, greater or different protection than its federal counterpart, appellant’s point
of error is inadequately briefed.”). In any event, we have independently reviewed
the record for an abuse of discretion in this regard, and do not find any.
The record reflects that Appellant requested an investigator on March 25,
2020. On October 29, 2020, the trial court appointed Investigator Jerry Randall.
Investigator Randall met with Appellant several times in the Garza County Jail,
during which Appellant tasked him with securing the following items: Officer
Zalewski’s personnel records, “TCLOSE” records, and military file; the City of
Seagraves Police Department shooting policy; and the dispatcher’s records from the
Gaines County Sheriff’s Office. Randall told Appellant he would need subpoenas
for the requested records, which he never received.
On April 15, 2021, Appellant advised the trial court that Randall retired on
March 31, 2021. The trial court appointed another investigator and ordered the State
to make any physical evidence available to that investigator for inspection.
On January 20, 2021, Appellant moved for the appointment of a forensic
psychologist to assess whether the victim suffered from post-traumatic stress
disorder (PTSD) prior to the shooting. On April 15, 2021, the trial court granted
Appellant’s oral motions for a medical doctor to review records and reports, and for
a clinical psychologist to offer an opinion as to PTSD. The trial court signed written
orders on June 11, 2021 appointing Dr. Ira Thomas and Dr. Timothy J. Nyberg, and
authorizing a $2,000 fee for each.
During trial, on June 17, after the State rested its case-in-chief, Appellant’s
standby counsel told the trial court that he advised Appellant not to call Dr. Nyberg.
Standby counsel further advised that Dr. Thomas requested additional time and
funds to continue reviewing records. The trial court approved an additional $500.

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Counsel assured the trial court that he would arrange a phone conversation between
Appellant and Dr. Thomas and advised the trial court that he did not anticipate
calling him as a witness. Ultimately, Appellant did not call Dr. Thomas to testify.
Appellant only requested one continuance in connection with calling an
expert, stating that he “sent the DVD . . . and [the expert] separated the gunshots . . .
he’s going to come testify that there’s only four on my end and . . . eight or nine of
the officer’s.” Appellant did not provide the expert’s name and told the trial court
he sent dashcam videos to this expert several months prior to trial. The trial court
denied his requested continuance because it “believe[d] this is just an attempt to
delay this trial.” Based on our review, the trial court took all reasonable measures
to ensure that Appellant was appointed investigators and experts, and that he was
given adequate time and funds for same. Having evaluated every complaint raised
by Appellant involving investigators and experts, we conclude there is no abuse of
discretion. Appellant’s fifth issue is overruled.
Jury Selection
In his sixth, seventh, and eighth issues, Appellant argues various errors that
allegedly occurred during jury selection. First, he asserts that his Fourteenth
Amendment right to equal protection was violated when the State exercised its
peremptory strikes on “all 5 Hispanic persons on the venire.” See U.S. CONST.
AMEND. XIV; Batson v. Kentucky, 476 U.S. 79 (1986); see also CRIM. PROC.

art. 35.261 (West 2006). Second, he avers that Jay Lee Youngblood was erroneously
sworn as juror after he was struck. Finally, Appellant submits that the trial court
erred in its timing of the jury shuffle.
Appellant did not challenge the State’s use of peremptory strikes at trial,
thereby failing to preserve error. See TEX. R. APP. P. 33.1(a)(1)(A). To preserve
error, a defendant must make a timely request, objection, or motion stating the

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grounds for his desired ruling with sufficient specificity to make the trial court aware
of the claim, unless the specific grounds were apparent from the context. Id.; Hall v.
State, 663 S.W.3d 15, 38 (Tex. Crim. App. 2021). Batson error is subject to the
same “principles of ordinary procedural default.” Batiste v. State, 888 S.W.2d 9, 17
n.5 (Tex. Crim. App. 1994). A defendant must call the trial court’s attention to the
composition of the jury “at some point during the pendency of the trial.” Allen v.
State, 726 S.W.2d 636, 640 (Tex. App.—Eastland 1987), aff’d, 769 S.W.2d 563
(Tex. Crim. App. 1989). He must then obtain an express or implied ruling on his
objection. Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009). Here,
Appellant’s failure to timely object to the composition of the jury bars review of the
alleged Batson error. See id.; TEX. R. APP. P. 33.1; Allen, 726 S.W.2d at 640.
With respect to Appellant’s complaint regarding juror Jay Lee Youngblood,
we likewise conclude there is no error. The State did not use one of its peremptory
strikes on Youngblood. In compliance with Article 35.26(a) of the Code of Criminal
Procedure, the State wrote “S#1” through “S#10” next to ten venire members, not
including Youngblood. See CRIM. PROC. art. 35.26(a). Next to Youngblood’s name
was an indiscernible, scratched out notation. Whether the prosecution mistakenly
indicated a strike next to his name, or initially intended to strike him and
reconsidered, the State struck a total of ten venire members. The logical conclusion
is that Youngblood was not struck.
Appellant next contests the timing of the jury shuffle. The right to a jury
shuffle is statutory in nature. See CRIM. PROC. art. 35.11 (requiring the seating order
of the venire to be randomly shuffled at the request of either party); Davis v. State,
782 S.W.2d 211, 214 (Tex. Crim. App. 1989). While the jury shuffle may be used
as a strategic tool, its purpose is to ensure the venire members are listed in random
order. Ford v. State, 73 S.W.3d 923, 926 (Tex. Crim. App. 2002). Here, the trial

17
court granted Appellant’s request for a jury shuffle during a pretrial hearing, then
directed the clerk to compile the list of venire members, shuffle them, then seat the
venire panel as shuffled. See CRIM. PROC. art. 35.11. Because the trial court ordered
the venire shuffled prior to the State’s questioning of the panel, we conclude that
Article 35.11 was satisfied. See Mays v. State, 726 S.W.2d 937, 947 (Tex. Crim.
App. 1986). We overrule Appellant’s sixth, seventh, and eighth issues.
Admissibility of Officer Zalewski’s Personnel Records
In his ninth issue, Appellant asserts that the trial court should have permitted
him to introduce Officer Zalewski’s personnel records. We review a trial court’s
ruling on admissibility of evidence for an abuse of discretion. 1 Coble v. State, 330
S.W.3d 253, 272 (Tex. Crim. App. 2010). An evidentiary ruling will be upheld on
appeal if it is within the zone of reasonable disagreement and is correct on any theory
of law that finds support in the record. Gonzalez v. State, 195 S.W.3d 114, 126 (Tex.
Crim. App. 2006); Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim. App.
2001); Dering v. State, 465 S.W.3d 668, 670–71 (Tex. App.—Eastland 2015, no
pet.).
The Sixth Amendment right to cross-examine a witness allows a party to
attack the general credibility of that witness or to show their possible bias, self-
interest, or motives in testifying. Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim.
App. 2009); see Miller v. State, 36 S.W.3d 503, 507 (Tex. Crim. App. 2001) (“A
defendant has a fundamental right to present evidence of a defense as long as the
evidence is relevant and is not excluded by an established evidentiary rule.”). A

Appellant does not claim that his rights to confrontation and to present a defense were violated
1

and he did not object to a Confrontation Clause violation at trial. See Golliday v. State, 560 S.W.3d 664,
669 (Tex. Crim. App. 2018) (citing Reyna v. State, 168 S.W.3d 173 (Tex. Crim. App. 2005) (a defendant
must put the trial judge on notice that he is making a Confrontation Clause argument to preserve error for
appellate review)).

18
defendant may elicit, on cross-examination, facts intended to show a witness’s bias
without undue limitation or arbitrary prohibition. TEX. R. EVID. 613(b); Jones v.
State, 571 S.W.3d 764, 769–70 (Tex. Crim. App. 2019).
However, a defendant does not have “an absolute constitutional right to
impeach the general credibility of a witness in any fashion that he chooses.”
Hammer, 296 S.W.3d at 562 (citing Davis v. Alaska, 415 U.S. 308, 316 (1974)). A
trial judge retains the discretion to impose reasonable limits on such cross-
examination to avoid harassment, prejudice, confusion of the issues, endangering
the witness, marginally relevant evidence, or when the subject of the examination
has been exhausted. Irby v. State, 327 S.W.3d 138, 145 (Tex. Crim. App. 2010)
(citing Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). Rule 608(b) of the
Texas Rules of Evidence provides that “a party may not inquire into or offer extrinsic
evidence to prove specific instances of the witness’s conduct in order to attack or
support the witness’s character for truthfulness.” TEX. R. EVID. 608(b). This rule
has been specifically applied to exclude evidence of the disciplinary history of police
officers. Baldez v. State, 386 S.W.3d 324, 328 (Tex. App.—San Antonio 2012, no
pet.); Dalbosco v. State, 978 S.W.2d 236, 238–39 (Tex. App.—Texarkana 1998, pet.
ref’d).
Appellant contends he was erroneously prohibited from using Officer
Zalewski’s personnel file, including his disciplinary history, during cross-
examination. Although Appellant refers to this information as “exculpatory
evidence,” it is a disciplinary record from an incident in 2018 that resulted in Officer
Zalewski being placed on “probationary status” for 180 days. Given that Appellant
was captured on video firing multiple shots at Officer Zalewski, the resolution of
this case came down to whether the jury believed Appellant’s self-defense theory.
Appellant was not involved in the 2018 incident and knew nothing of Officer

19
Zalewski’s reputation or disciplinary history prior to the shooting. The records
likewise revealed no credibility issues that Appellant could have used to properly
impeach Officer Zalewski. We conclude Appellant had no purpose for offering
the personnel file other than to improperly use specific instances of conduct
to attack Officer Zalewski’s character for truthfulness. See TEX. R. EVID. 608(b).
Accordingly, the trial court acted within its discretion by excluding the proffered
records and information therefrom.
Nevertheless, applying the harm factors from Van Arsdall, any error in
excluding this evidence was harmless beyond a reasonable doubt.2 In addition to
Officer Zalewski’s testimony, the jury saw the dashcam video of Appellant exiting
his vehicle and immediately firing several gunshots at Officer Zalewski. Appellant
was permitted to cross-examine Officer Zalewski about the traffic stop, the validity
of his outstanding warrants, and was given latitude when accusing Officer Zalewski
of “racial profiling.” He introduced Officer Zalewski’s statement, discussed his
medical records, and repeatedly asked whether he had been diagnosed with PTSD
prior to the shooting. After considering the Van Arsdall factors, we conclude that
any potential error in excluding Officer Zalewski’s disciplinary record was harmless
beyond a reasonable doubt. See Jones, 571 S.W.3d at 770–71. We overrule
Appellant’s ninth issue.

2
See Van Arsdall, 475 U.S. at 684 (“The correct inquiry is whether, assuming that the damaging
potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the
error was harmless beyond a reasonable doubt. Whether such an error is harmless in a particular case
depends upon a host of factors, all readily accessible to reviewing courts. These factors include the
importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the
presence or absence of evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the
prosecution’s case.”).

20
Brady Claim
Appellant contends in his tenth issue that the State withheld evidence.
Although Appellant makes several accusations about the State, the police, the trial
court, and the court reporter withholding or altering evidence, he has identified
nothing with sufficient specificity other than Officer Zalewski’s purportedly missing
bodycam footage. The State has consistently maintained that the evidence of which
Appellant complains never existed.
“Article 39.14(h) places upon the State a free-standing duty to disclose all
‘exculpatory, impeaching, and mitigating’ evidence to the defense that tends to
negate guilt or reduce punishment.” Watkins v. State, 619 S.W.3d 265, 277 (Tex.
Crim. App. 2021). “[T]his duty to disclose is much broader than the prosecutor’s
duty to disclose as a matter of due process under Brady v. Maryland.” Id. (citing
Brady v. Maryland, 373 U.S. 83 (1963)). But that duty does not extend to
“create[ing] or generat[ing] evidence that does not otherwise exist.” In re State ex
rel. Best, 616 S.W.3d 594, 600 (Tex. Crim. App. 2021).
Officer Zalewski told Appellant during cross-examination that his bodycam
was not activated during the shooting because it was on the charging cradle in his
vehicle. Gaines County Sheriff Chief Deputy Clint Low confirmed that Officer
Zalewski’s bodycam footage did not exist. Ranger Eaton explained that he tried to
download Officer Zalewski’s bodycam footage, but “there was nothing on it”
because it “did not record anything.”
Neither Brady, its progeny, nor Article 39.14 require prosecuting authorities
to create information that does not exist. In re Harris, 491 S.W.3d 332, 336 (Tex.
Crim. App. 2016); In re State ex rel. Munk, 448 S.W.3d 687, 692 (Tex. App.—
Eastland 2014, no pet.). We have found nothing to substantiate Appellant’s

21
contention that evidence existed beyond what was provided to him during discovery.
We overrule Appellant’s tenth issue.
Exclusion of Witnesses
In his eleventh issue, Appellant asserts that the trial court erred when it did
not require the attendance of Chief Brent Grundstrom and Luis Pinon to testify in
his defense. We review an alleged violation of an evidentiary rule and the right to
compulsory process for an abuse of discretion. Kinnett v. State, 623 S.W.3d 876,
902 (Tex. App.—Houston [1st Dist.] 2020, pet. ref’d).
After Appellant called eighteen witnesses, the trial court inquired about the
materiality of his remaining witnesses. Appellant proffered that he intended to
question Luis Pinon about picking up shell casings from the crime scene, and why
the police have not arrested him for tampering with evidence. The trial court
expressed its approval to call Luis Pinon. However, after Appellant finished
questioning his twenty-third witness, Silberio Pinon, he told the trial court: “I don’t
have no—Luis Pinon, but you said . . . he didn’t have to be here.” Without witnesses
ready, Appellant rested his case and did so without calling Luis Pinon.
Our federal and state laws give the trial court great discretion in conducting
and managing trial. See Barron v. State, 630 S.W.3d 392, 408 (Tex. App.—Eastland
2021, pet. ref’d). For example, both the United States and Texas constitutions
provide a criminal defendant with the right to compulsory process for obtaining
witnesses in his favor but do not guarantee the right to secure the testimony of any
and all witnesses. See U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Coleman v.
State, 966 S.W.2d 525, 527 (Tex. Crim. App. 1998). Rather, compulsory process is
guaranteed for obtaining witnesses whose testimony would be both material and
favorable to the defense. Coleman, 966 S.W.2d at 527–28. “Evidence is material if
it has some logical connection to a consequential fact . . . [as] determined by

22
evaluating its relation to a particular subject matter rather than its impact upon the
overall determination of guilt or punishment in light of the evidence introduced at
trial.” Watkins, 619 S.W.3d at 269 (internal quotation marks omitted).
Additionally, the Texas Rules of Evidence charge the trial court with
exercising “reasonable control over the mode and order of examining witnesses and
presenting evidence” to make the procedures “effective for determining the truth,”
“avoid wasting time,” and “protect[ing] witnesses from harassment or undue
embarrassment.” TEX. R. EVID. 611(a). And the trial court may exclude relevant
evidence if its probative value is substantially outweighed by the danger of
“needlessly presenting cumulative evidence.” TEX. R. EVID. 403.
Appellant called twenty-three witnesses and he filed applications for 123
subpoenas. Ranger Eaton attested that he got shell casings from Luis Pinon, who
admitted to taking them from the crime scene. Silberio Pinon testified that he was
there when police went to Luis Pinon’s house to retrieve shell casings five days after
the shooting. Through these witnesses, Appellant elicited evidence that Luis Pinon
took the shell casings from the crime scene and returned them to police five days
after the shooting. The trial court, therefore, did not abuse its discretion in refusing
to allow Appellant an additional day to call Luis Pinon.
Furthermore, despite the lack of apparent connection to his self-defense
theory, the trial court gave Appellant wide latitude in calling witnesses. Its decision
to conclude trial after Appellant’s last available witness was a reasonable exercise
of its control over the mode and order of trial. See TEX. R. EVID. 611(a). And
whether the witness’s testimony was cumulative, and a waste of time, was within
the zone of reasonable disagreement. See id. R. 403.
With respect to Chief Grundstrom, Appellant intended to elicit testimony
about Officer Zalewski’s disciplinary record. After the trial court reiterated that

23
Officer Zalewski’s professional discipline history was not admissible, Appellant
argued Chief Grundstrom’s testimony was material because he “said . . . when he
got there, the door of my truck was open . . . that’s not true.” Appellant fails to
explain how this has any logical connection to a consequential fact or his self-
defense theory. See Watkins, 619 S.W.3d at 269. On this record, we cannot say the
trial court abused its discretion in prohibiting Appellant from calling Chief
Grundstrom as a witness. We overrule Appellant’s eleventh issue.
Alleged Perjured Testimony
Appellant contends in his twelfth issue that he was convicted based on Officer
Zalewski’s and Ranger Eaton’s perjured testimony. Appellant again points to the
nonexistent bodycam footage, and a video that he requested in connection with two
shell casings found by “the Texas Rangers and K9 dog.” Appellant further avers
that Officer Zalewski lied in “his written statement” about the traffic stop, and that
both he and Ranger Eaton lied about his bodycam charging.
“[T]he use of material false evidence to procure a conviction violates a
defendant’s due-process rights under the Fifth and Fourteenth Amendments to the
United States Constitution.” Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim.
App. 2015). “[T]he relevant question is whether the testimony, taken as a whole,
gives the jury a false impression.” Id.; see Ex parte Chaney, 563 S.W.3d 239, 263
(Tex. Crim. App. 2018). “It is axiomatic that a due process claim based on false
evidence requires the defendant to prove first and foremost that the evidence was
actually false.” Ukwuachu v. State, 613 S.W.3d 149, 150 (Tex. Crim. App. 2020).
To meet this burden, a defendant must identify “some credible evidence that clearly
undermines the evidence adduced at trial.” Id. at 156. The evidence of falsity must
be “definitive or highly persuasive.” Id. at 157. If the defendant successfully
establishes that false evidence was presented at his trial, he must also show the false

24
evidence was material to his conviction. Ex parte De La Cruz, 466 S.W.3d at 866.
“[A] false statement is material only if there is a reasonable likelihood that the false
testimony affected the judgment of the jury.” Ex parte Weinstein, 421 S.W.3d 656,
665 (Tex. Crim. App. 2014).
Appellant cross-examined Ranger Eaton and Officer Zalewski about the
bodycam footage, and the reasons for the traffic stop. Appellant also questioned
Ranger Eaton about the shell casings found at the crime scene. He fails to identify
“some credible evidence that clearly undermines the evidence adduced at trial.”
Ukwuachu, 613 S.W.3d at 156. To the extent there were inconsistencies or conflicts
in the evidence presented to the jury, we “owe[] deference to the jury’s determination
with respect to the weight and credibility of the evidence.” Ex parte De La Cruz,
466 S.W.3d at 870–71. We may not circumvent the jury’s role in assessing the
witnesses’ credibility, and resolving the inconsistencies presented. Id. at 867.
Because Appellant has not proved that the complained-of testimony was actually
false, we overrule his twelfth issue. See Ukwuachu, 613 S.W.3d at 150.
Arraignment
Appellant argues in his thirteenth issue that the trial court erred by failing to
arraign him. He acknowledges he waived arraignment but contends that it was
because his first attorney “lied to him.”
Appellant told the trial court during a pretrial hearing that he has “never been
arraigned.” The trial court advised him that he signed a waiver of arraignment when
he was represented by counsel. Appellant insisted that he did not intelligently and
knowingly waive arraignment, and that is why he fired his first attorney. However,
he later admitted that he and his attorney had a disagreement over discovery and
other matters. The trial court found that Appellant’s waiver of arraignment was
valid.

25
“In all felony cases, after indictment . . . there shall be an arraignment,” unless
waived, for the purpose of “fixing [the accused’s] identity and hearing his plea.”
CRIM. PROC. art. 26.01–02 (West 2009). The record reflects that Appellant was
arrested and booked into jail on May 4, 2019. A Gaines County grand jury returned
an indictment against Appellant on July 18, 2019, and Appellant’s counsel filed a
waiver of arraignment on September 10, 2019.
Article 26.011 authorizes the waiver of arraignment by a defendant’s attorney.
CRIM. PROC. art. 26.011. The record does not support Appellant’s claim that he
involuntarily waived arraignment, and the law permitted his counsel to do so for
him. We overrule Appellant’s thirteenth issue.
Motion to Quash
Appellant adds a fourteenth issue to his second point of error in his fourth
supplemental brief, challenging the trial court’s denial of his motion to quash the
indictment. The indictment charged Appellant with one count of aggravated assault
against a public servant and a second count of attempted capital murder. Appellant
filed a motion to sever and try each count separately, which the trial court denied.
He filed a motion to quash the indictment, which the trial court also denied.
Both the United States and the Texas constitutions provide that a criminal
defendant has the right to notice of the charges brought against him. U.S. CONST.
amend. VI; TEX. CONST. art I, § 10; State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim.
App. 2004). The charging instrument—in this case, the indictment—must be
specific enough to inform the accused of the nature of the accusation against him so
that he may prepare a defense. Moff, 154 S.W.3d at 601; see State v. Barbernell,
257 S.W.3d 248, 250 (Tex. Crim. App. 2008).
Appellant asserts that the trial court should have “force[d] the State to elect
the count it would proceed under.” We first note that we find no error in the trial

26
court’s denial of Appellant’s motion to quash. A defendant may be prosecuted in a
single criminal action for all offenses arising out of the same criminal episode.
PENAL § 3.02(a) (West 2021). Additionally, “[t]wo or more offenses may be joined
in a single indictment, . . . with each offense stated in a separate count, if the offenses
arise out of the same criminal episode.” CRIM. PROC. art. 21.24.
However, because the State only proceeded on Count One of the indictment,
Appellant’s complaint is moot. See Hernandez v. State, No. 14-95-00003-CR, 1996
WL 11233, at *2 (Tex. App.—Houston Jan. 11, 1996, no pet.). Appellant does not
direct our attention to any deficiencies in the charging language itself, only that the
State should have been required to elect. Because the State waived the second count,
we overrule Appellant’s fourteenth issue as moot.
Change of Venue
In Appellant’s fifteenth issue, he claims that the trial court erroneously denied
his motion to change venue. We review a trial court’s ruling on a motion for change
of venue for an abuse of discretion. Tracy v. State, 597 S.W.3d 502, 509–10 (Tex.
Crim. App. 2020).
A change of venue may be granted on the written motion of the defendant for
the following reasons:
(1) that there exists in the county where the prosecution is commenced
so great a prejudice against him that he cannot obtain a fair and
impartial trial; and
(2) that there is a dangerous combination against him instigated by
influential persons, by reason of which he cannot expect a fair trial.
CRIM. PROC. art. 31.03(a). A defendant’s written motion must be supported by his
own affidavit and the affidavits of at least two credible residents of the county where
the prosecution is instituted. Id.

27
The primary purpose of a change of venue is to ensure a defendant’s ability to
obtain a fair and impartial trial from the members of the community from which the
jury will be selected. See Tracy, 597 S.W.3d at 509 (“A defendant must demonstrate
‘an actual, identifiable prejudice attributable to pretrial publicity on the part of the
community from which members of the jury will come.’”) (quoting DeBlanc v.State,
799 S.W.2d 701, 704 (Tex. Crim. App. 1990)); see also Ryser v. State, 453 S.W.3d
17, 33 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (“Change of venue is a
remedy designed to ensure the defendant a fair trial when extensive news coverage
has raised substantial doubts about the effectiveness of voir dire for obtaining an
impartial jury.”) (citing Beets v. State, 767 S.W.2d 711, 742–43 (Tex. Crim. App.
1987)).
Appellant attached his own affidavit to his motion to change venue in which
he asserted, without supporting facts or affidavits from two other credible residents,
that “the prejudice is so great against [him].” At the motion hearing, Appellant cited
the sources of prejudice as the trial court and the District Attorney’s Office, rather
than the community from which jurors would be selected.3 Appellant thus failed to
carry his burden to show that pervasive, prejudicial, and inflammatory publicity
would prevent him from obtaining a fair trial by an impartial jury. See Tracy, 597
S.W.3d at 509, 511; Colone v. State, 573 S.W.3d 249, 257 (Tex. Crim. App. 2019).
We overrule Appellant’s fifteenth issue.

3
Appellant filed a motion to recuse the Honorable Reed Filley, the presiding judge of the 106th
District Court of Gaines, County Texas, on January 15, 2021, and a motion to disqualify him on
February 10, 2021. Judge Dean Rucker, the Presiding Judge of the Seventh Administrative Judicial Region
at the time, assigned the Honorable John L. Pool, the presiding judge of the 109th District Court, to hear
and rule on both motions. Judge Pool denied Appellant’s motion to recuse, and Appellant does not
challenge this ruling on appeal.

28
Speedy Trial
In his sixteenth issue, Appellant alleges that his right to a speedy trial was
violated. The Sixth Amendment to the United States Constitution guarantees the
accused in a criminal prosecution the right to a speedy trial. U.S. CONST. amend.VI;
State v. Lopez, 631 S.W.3d 107, 113 (Tex. Crim. App. 2021). The Texas constitution
provides the same guarantee. TEX. CONST. art. I, § 10. “[A]n evaluation of a speedy
trial claim includes a consideration of the length of delay, the reasons for delay, to
what extent the defendant has asserted his right, and any prejudice suffered by the
defendant.” Lopez, 631 S.W.3d at 113 (internal quotation marks omitted) (citing
Barker v. Wingo, 407 U.S. 514, 530–32 (1972)). “The length of the delay is, to some
extent, a triggering mechanism, so that a speedy trial claim will not even be heard
until passage of a period of time that is, on its face, unreasonable in the
circumstances.” Dragoo v. State, 96 S.W.3d 308, 313 (Tex. Crim. App. 2003).
“We apply a bifurcated standard of review: an abuse of discretion standard for
the factual components and a de novo standard for the legal components.” Lopez,
631 S.W.3d at 113–14. “To be clear, while an evaluation of the Barker factors
includes fact determinations and legal conclusions, the balancing test as a whole is
a purely legal question that we review de novo.” Id. (internal quotation marks
omitted).
1. Length of Delay
“To trigger a speedy trial analysis, the defendant must make an initial showing
that the interval between accusation and trial has crossed the threshold dividing
ordinary from presumptively prejudicial delay.” State v. Conatser, 645 S.W.3d 925,
929 (Tex. App.—Dallas 2022, no pet.) (quoting Gonzales v. State, 435 S.W.3d 801,
808 (Tex. Crim. App. 2014)); Doggett v. United States, 505 U.S. 647, 651–52
(1992). We measure the length of delay from the time the accused is arrested or

29
formally accused. Gonzales, 435 S.W.3d at 809 (citing United States v. Marion, 404
U.S. 307, 313 (1971)). There is no set or defined period of time that has been held
to be a per se violation of a defendant’s right to a speedy trial under the Sixth
Amendment. Barker, 407 U.S. at 530; Cantu v. State, 253 S.W.3d 273, 280–81
(Tex. Crim. App. 2008). Alleged violations are considered on a case-by-case basis,
and each case is considered on its own merits. Barker, 407 U.S. at 529–30. For
example, “the delay that can be tolerated for an ordinary street crime is considerably
less than for a serious, complex conspiracy charge.” Id. at 531.
Here, Appellant was arrested on May 4, 2019. He was formally charged on
July 18, 2019, and his trial began on June 14, 2021. Nearly twenty-six months
between his arrest and commencement of trial is considered “presumptively
prejudicial,” and triggers consideration of the remaining Barker factors. Id. at 530;
Cantu, 253 S.W.3d at 281.
2. Reasons for Delay
We do not attribute equal weight to all reasons for delay: an intentional delay
for tactical reasons is weighed heavily against the State; a neutral reason, such as
overcrowded courts or negligence, is weighed less heavily against the State; and a
valid reason is not weighed against the State at all. State v. Munoz, 991 S.W.2d 818,
822 (Tex. Crim. App. 1999); Conatser, 645 S.W.3d at 929.
Appellant was formally charged on July 18, 2019, just over two months after
his arrest. On February 20, 2020, the trial court granted his “request for a speedy
trial and special setting,” and set his trial for March 30, 2020. Appellant filed a
motion for continuance on February 26, 2020, which the trial court granted.
Appellant filed another motion for speedy trial on November 17, 2020, again on
January 20, 2021, and a motion for a dismissal due to a denial of his right to a speedy

30
trial on March 16, 2021. At a remote hearing on January 7, 2021, the trial court
sua sponte took judicial notice of certain facts, including:
Beginning [o]n March 13th, 2020, the Texas Supreme Court and the
Court of Criminal Appeals have issued multiple emergency orders.
Several of those orders have suspended jury trials in both civil and
criminal matters. Beginning [i]n October 2020, the suspensions were
lifted and in-person jury trials were once again allowed without
restrictions. . . . [T]his case was scheduled for a jury trial to begin on
December 1st, 2020. . . . Due to the increase in Covid-19 numbers in
Gaines County, Texas, in mid-November of 2020, this Court made the
decision to cancel the jury trial which was scheduled for December 1st,
2020. . . . [T]his court has not conducted any jury trials since
[Appellant]’s Motion for Continuance was granted.

The months of March through November of 2020 “were dominated by the
unforeseeable initial impact of the Covid-19 pandemic.” Conatser, 645 S.W.3d at
930; see, e.g., Thirty-Third Emergency Order Regarding the Covid-19 State of
Disaster, 629 S.W.3d 179, 180 (Tex. 2021). The trial court explained it “has not
conducted any jury trials since . . . February 26th, 2020.”
We acknowledge the Texas Supreme Court’s emergency orders do “not
supersede constitutional mandates,” and “a state of disaster alone cannot indefinitely
pretermit enjoyment of the speedy trial right.” Lovelace v. State, 654 S.W.3d 42, 49
(Tex. App.—Amarillo 2022, no pet.) (internal quotation marks omitted). But we
agree with our sister court that “[d]elay caused by the onset of a pandemic cannot be
attributed as fault to the State.” Conatser, 645 S.W.3d at 930; see Schuman v. State,
No. 11-22-00300-CR, 2024 WL 847692, at *9 (Tex. App.—Eastland Feb. 29, 2024,
pet. ref’d) (mem. op., not designated for publication). There is also no evidence that
the State deliberately delayed Appellant’s trial for strategic gain. Schuman, 2024
WL 84769, at *10. We find this Barker factor weighs against neither the State nor
Appellant. See id.

31
3. Assertion of the Right
The third Barker factor examines the defendant’s assertion of his right to a
speedy trial. As set forth above, Appellant filed his “request for speedy trial and
special setting” on January 1, 2020, and his trial was set for March 30, 2020. The
trial court granted his motion for a continuance that he filed in February of 2020,
and the pandemic prevented in-person jury trials for several months thereafter. See
Thirty-Third Emergency Order Regarding the Covid-19 State of Disaster, 629
S.W.3d at 180. Appellant filed three more motions asserting his right to a speedy
trial.
On April 15, 2021, the trial court advised Appellant that his case was set for
trial on June 14, 2021. At that hearing, Appellant asked for a continuance for expert
appointments, and agreed to waive his right to a speedy trial. The trial court denied
his continuance and appointed experts as requested.
It is clear that Appellant wanted a trial, but only after interviewing every
witness, receiving every item of discovery no fewer than three separate times,
attempting to recuse the trial judge, and getting released on bond. A defendant may
not use his rights “to manipulate the court” or “jack the system around.” Huggins v.
State, 674 S.W.3d 538, 549 (Tex. Crim. App. 2023). Appellant undoubtedly asserted
his right to speedy trial, but simultaneously requested more time and access to
witnesses and evidence—despite multiple rulings by the trial court that he had
received everything in the State’s possession. Although Appellant asserted his right
to speedy trial on multiple occasions, he contradicted his expressed desire to go to
trial by complaining that he could not mount a defense without more resources and
a bond reduction. Balancing Appellant’s vehement assertion of his right with his
incongruous requests for more time, this factor weighs only slightly against the State.

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4. Prejudice
The defendant has the burden of showing prejudice. Cantu, 253 S.W.3d at
280. We assess this factor in light of the three interests the right to a speedy trial is
intended to protect: (1) preventing oppressive pretrial incarceration; (2) minimizing
anxiety and concern of the accused; and (3) limiting the possibility that the defense
will be impaired. Hopper v. State, 520 S.W.3d 915, 924 (Tex. Crim. App. 2017).
Appellant has failed to identify any significant prejudice caused by the delay
in bringing him to trial. See id. Throughout his numerous pretrial hearings and in
his brief to this court, Appellant protested his lack of access to experts, evidence for
inspection, witnesses to conduct interviews, and the law. He complained that he
could not prepare a defense from jail and did not have the education and resources
of an attorney. He now asserts he suffered anxiety.
We note that Appellant’s pro se status does not entitle him to leniency or
special consideration. See Osorio-Lopez v. State, 663 S.W.3d 750, 757 (Tex. Crim.
App. 2022). Additionally, “evidence of generalized anxiety, though relevant, is not
sufficient proof of prejudice under the Barker test, especially when it is no greater
anxiety or concern beyond the level normally associated with a criminal charge or
investigation.” Cantu, 253 S.W.3d at 286. From jail, Appellant was able to mount
a defense that included calling twenty-three witnesses. He does not argue that any
witnesses suffered memory loss or disappeared as a result of the time lapse between
his arrest and trial. Nothing indicates his defense was impaired by the pretrial delay.
See Hopper, 520 S.W.3d at 924. Further, while most of Appellant’s complaints of
prejudice understandably arose from his confinement, there is no evidence that his
pretrial incarceration was “oppressive.” Id. Finding no prejudice caused by the
delay, this factor weighs against a finding that Appellant’s right to a speedy trial was
violated.

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Application of the Barker factors shows that the reason for the delay is neutral,
the third factor weighs slightly in favor of Appellant, but the fourth factor weighs
heavily against him. Despite the nearly twenty-six-month delay, weighing the
Barker factors leads us to conclude that Appellant’s right to a speedy trial was not
violated. See Barker, 407 U.S. at 530; Cantu, 253 S.W.3d at 280. Therefore, the
trial court did not err in denying Appellant’s motion to dismiss for violation of his
right to a speedy trial. We overrule Appellant’s sixteenth issue.
Standby Counsel
Appellant argues in his seventeenth issue that the trial court “forced” standby
counsel on him during trial. He does not contend the trial court erred by allowing
him to represent himself, nor that he unknowingly or involuntarily waived his right
to counsel. He instead makes a myriad of accusations against his standby counsel,
none of which are supported by the record.
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to have the assistance of counsel for his defence.”
See U.S. CONST. amend. VI.; TEX. CONST. art. I § 10; Faretta v. California, 422 U.S.
806, 807 (1975); Osorio-Lopez, 663 S.W.3d at 756. “Concomitant with the right to
counsel is the right to waive counsel and to represent one’s self” after a knowing and
intelligent waiver of the right to counsel. Hatten v. State, 71 S.W.3d 332, 333 (Tex.
Crim. App. 2002); see Osorio-Lopez, 663 S.W.3d at 756.
The trial court may appoint standby counsel—even over the defendant’s
objection—to relieve the judge of the need to explain and enforce basic rules of
courtroom protocol or to assist the defendant in overcoming routine obstacles
that stand in the way of the defendant’s achievement of his own clearly
indicated goals. McKaskle v. Wiggins, 465 U.S. 168, 184 (1984) (citing Faretta,
422 U.S. at 834 n.46); Scarbrough v. State, 777 S.W.2d 83, 92 (Tex. Crim. App.

34
1989) (“participation of standby counsel does not infringe upon Faretta’s guarantee
of self-representation and may even be imposed upon the accused”); Shook v. State,
649 S.W.3d 823, 824 (Tex. App.—Waco 2022, pet. ref’d) (“trial court can appoint
standby counsel to assist a criminal defendant who represents himself at trial, even
over the defendant’s objection”).
Despite Appellant’s proclamation that he did not want standby counsel,
Appellant consulted with him on several matters throughout pretrial hearings and
trial. Moreover, because indigent defendants do not have the right to the appointed
counsel of their choosing, it is logical to conclude that an indigent defendant who
has invoked his right to self-representation does not have the right to choose his
appointed standby counsel. See Stearnes v. Clinton, 780 S.W.2d 216, 221 (Tex.
Crim. App. 1989). We therefore find no error in the trial court’s appointment of
standby counsel over Appellant’s objection. We overrule Appellant’s seventeenth
issue.
Excessive Bail
Appellant contends in his eighteenth issue that his $750,000 pretrial bail was
excessive, in violation of the Eighth Amendment.4 Appellant filed several motions
to reduce his bond, all of which were denied. “A trial court’s ruling setting the
amount of bail is reviewed for an abuse of discretion.” Ex parte Gomez, 624 S.W.3d
573, 576 (Tex. Crim. App. 2021). “The burden of proof is on the defendant to show
that bail is excessive.” Id.

4
Appellant has not cited, nor have we found, authority to the effect that a claim of excessive pretrial
bail is cognizable after trial has occurred. In a similar situation we concluded that a challenge to the amount
of bail is moot when the appellant is no longer confined by virtue of the allegedly excessive pre-trial bail
amount. See Reynolds v. State, No. 11-05-00096-CR, 2006 WL 648331, at *2 (Tex. App.—Eastland
Mar. 16, 2006, no pet.) (not designated for publication).

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The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and
unusual punishments inflicted.” U.S. CONST. amend. VIII. This provision applies
to the states by the Due Process Clause of the Fourteenth Amendment. Robinson v.
California, 370 U.S. 660, 675 (1962). Bail is excessive if it is in an amount greater
than is reasonably necessary to satisfy the government’s legitimate interests. See
U.S. CONST. amend. VIII; TEX. CONST. art. I, § 13; Chavez v. State, 671 S.W.3d 775,
785 (Tex. App.—Fort Worth 2023, no pet.). “The government’s primary interest,
and bail’s primary purpose, is to provide a reasonable assurance of the defendant’s
presence at trial.” Chavez, 671 S.W.3d at 785; see CRIM. PROC. art. 17.01; Ex parte
Vasquez, 558 S.W.2d 477, 479 (Tex. Crim. App. 1977).
In setting bail, a trial court is “governed by the Constitution and the following”
statutory guidelines:
1. Bail and any conditions of bail shall be sufficient to give
reasonable assurance that the undertaking will be complied with.
2. The power to require bail is not to be used to make bail an
instrument of oppression.
3. The nature of the offense and the circumstances under which the
offense was committed are to be considered, including whether the
offense:
(A) is an offense involving violence as defined by Article 17.03; or
(B) involves violence directed against a peace officer.
4. The ability to make bail shall be considered, and proof may be
taken on this point.
5. The future safety of a victim of the alleged offense, law
enforcement, and the community shall be considered.
6. The criminal history record information for the defendant . . .
shall be considered, including any acts of family violence, other

36
pending criminal charges, and any instances in which the defendant
failed to appear in court following release on bail.
7. The citizenship status of the defendant shall be considered.
CRIM. PROC. art. 17.15(a) (West 2022). The Court of Criminal Appeals has
identified other factors to be considered as well, including the defendant’s work
record, his family ties, and his length of residency. See Ex parte Rubac, 611 S.W.2d
848, 849–50 (Tex. Crim. App. [Panel Op.] 1981) (listing many factors reflected in
the current version of Article 17.15).
Here, Appellant failed to carry his burden to show $750,000 was unnecessary
to satisfy the government’s legitimate interests. “The nature of the defendant’s
alleged offense and the length of his potential sentence are the ‘primary factors’ we
consider in evaluating a bail decision.” Chavez, 671 S.W.3d at 785–86; see CRIM.
PROC. art. 17.15(a)(3); Ex parte Rubac, 611 S.W.2d at 849. In reviewing the nature
of the offense, courts must necessarily consider the potential punishment permitted
under the law. See Ex parte Rodriguez, 595 S.W.2d 549, 550 (Tex. Crim. App.
[Panel Op.] 1980).
The nature of Appellant’s offense indicates a brazen, violent act committed in
a public place against a public servant. Appellant was charged with two first-degree
felony offenses—aggravated assault against a public servant and attempted capital
murder—based on a violent, public attempt to shoot a police officer in full uniform
and a marked patrol vehicle who was conducting a traffic stop. See PENAL §§ 15.01,
19.03(a)(1), 22.02(b)(2)(B). The punishment range for each count was five to
ninety-nine years or life in prison. Id. § 12.32.
Not only was the alleged offense brazen, and the potential punishment
lengthy, but Appellant had already shown that he was a flight risk. The State
provided evidence that, at the time of the offense, Appellant had five outstanding

37
warrants, including one for a motion to revoke his community supervision issued at
least four months prior to his commission of the instant offense. Thus, not only was
Appellant on felony community supervision at the time he shot Officer Zalewski, he
was wanted for violating the conditions of his community supervision. The State
also presented Appellant’s gang affiliation with the Mexican Mafia, and his criminal
history consisting of at least six felony convictions, the most recent one in 2019.
Finally, in reviewing pretrial bail decisions by the trial court, appellate courts
have compared bail amounts in other cases involving offenses of the same degree.
For example, appellate courts have upheld the following bail amounts in felony
cases: $500,000 for aggravated assault; $250,000 for aggravated assault on a public
servant; $750,000 for aggravated assault with a deadly weapon; $750,000 for
aggravated robbery; and $1.9 million for aggravated robbery. See Ex parte Everage,
No. 03-17-00879-CR, 2018 WL 1788795, at *6–9 (Tex. App.—Austin Apr. 13,
2018, no pet.) (mem. op., not designated for publication) (collecting cases).
Given the serious nature of the offense, the circumstances surrounding the
offense as alleged in this case, Appellant’s potential sentence, the evidence presented
at the hearing, and the lack of evidence showing the family’s financial resources and
efforts to obtain a bond, we cannot say that the trial court abused its discretion when
it concluded Appellant failed to meet his burden of showing that bail in the amount
of $750,000 was excessive. We overrule Appellant’s eighteenth issue.
Summary
Appellant declares that there are “a lot more 14th Amendment violation[s],”
and if he included them all, he “would have to write a 1,000[-]page [b]rief.”
Appellant asked this court “to review all the record.” Having done so, we are
reassured that all measures were taken to protect Appellant’s constitutional and
statutory rights, and the applicable rules and procedures were followed.

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This Court’s Ruling
We affirm the judgment of the trial court.

JOHN M. BAILEY
CHIEF JUSTICE

July 25, 2024
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.

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