Chris CJ Martinez, Jr. v. the State of Texas

Opinion filed September 25, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00159-CR
__________

CHRIS CJ MARTINEZ, JR., Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 89th District Court
Wichita County, Texas
Trial Court Cause No. DC89-CR2023-0948

MEMORANDUM OPINION
Appellant, Chris CJ Martinez, Jr., was indicted for the second-degree felony
offense of possession with intent to deliver a controlled substance in penalty
group 1-B, fentanyl, in an amount of one gram or more but less than four grams. See
TEX. HEALTH & SAFETY CODE ANN. § 481.1123(a), (c) (West Supp. 2024). The jury
convicted Appellant of the charged offense and assessed his punishment at twenty
years’ imprisonment in the Institutional Division of the Texas Department of
Criminal Justice and a $10,000 fine. The trial court sentenced him accordingly.
In two issues, Appellant asserts that: (1) the trial court erred when it failed to
instruct the jury as to the voluntariness of the statements that Appellant made to law
enforcement; and (2) the trial court erred when it admitted a photograph during the
punishment phase, which Appellant contends was irrelevant and unduly prejudicial.
We affirm. 1
I. Factual Background and Procedural History
On February 28, 2023, Officer Hayden King of the Wichita Falls Police
Department was responding to an automobile accident when he was “[waved] down”
and directed to a vehicle (Appellant’s vehicle) that was parked at a gas station. After
Officer King stopped at this gas station, Appellant exited his vehicle, and Officer
King spoke to him. Officer King smelled the odor of burnt marihuana emanating
from Appellant’s vehicle, which prompted him to search the vehicle and Appellant’s
person. During the search, Officer King recovered a “small amount” of marihuana
and twenty-two small blue pills.2 Because Officer King suspected that the blue pills
that he seized from Appellant’s vehicle were fentanyl, Appellant was arrested; he
later admitted that the pills were fentanyl.3 Officer King then transported Appellant
to the Wichita Falls Police Department where he was interviewed by law
enforcement. A grand jury subsequently indicted Appellant for the offense of

1
Pursuant to Misc. Docket Order No. 24-9013 issued by the Texas Supreme Court on March 21,
2024, this appeal was transferred to us from the Second Court of Appeals. Therefore, as the transferee
court, we must decide the issues raised in this appeal in accordance with the precedent of the Second Court
of Appeals if its precedent conflicts with ours. See TEX. R. APP. P. 41.3.
2
Officer King also seized Appellant’s cell phone and $1,394 in “small denomination bills.”
3
The blue pills recovered from Appellant’s vehicle were subsequently tested; the results showed
that they contained fentanyl.
2
possession with intent to deliver a controlled substance, fentanyl, in an amount of
one gram or more but less than four grams.
On January 5, 2024, the State filed a notice of its intent to offer at trial
Appellant’s recorded interview with law enforcement. On April 12, Appellant filed
a motion in limine and other objections challenging the admissibility of the
statements that he made to law enforcement during his interview. On April 15, after
the conclusion of voir dire, the trial court conducted a hearing on Appellant’s motion
and objections. After the hearing, the trial court found that Appellant’s statements
were made voluntarily and were thus admissible. Later, during the guilt/innocence
phase, Appellant’s trial counsel re-urged his objections to the admission of
Appellant’s statements, which the trial court overruled.
A. Voluntariness of Appellant’s Statements
During the guilt/innocence phase, Officer King testified about his
observations and interactions with Appellant at the gas station. Officer King stated
that Appellant was “staggering left to right while he was speaking” and that he had
“mumbled and slurred” speech. Based on his observations, Officer King suspected
that Appellant was “under the influence of either alcohol or a narcotic,” so he
requested that Appellant perform a horizontal gaze nystagmus (HGN) test; Officer
King did not observe any nystagmus during the test. Officer King also asked
Appellant if he had inhaled or ingested any intoxicants, or if he had “swallowed any
pills,” and Appellant responded that he had not used any drugs or alcohol that day.
However, Appellant did admit to Officer King that he was “addicted to fentanyl”
and that he had ingested fentanyl the previous day.
Officer King testified that he was “concerned about [Appellant’s] medical
well-being” and he carefully observed Appellant because it appeared that Appellant
might be under the influence of fentanyl. Officer King testified that he noticed that

3
Appellant was “nodding off, almost falling asleep” while he was seated in the
backseat of Officer King’s patrol unit.
Officer Taylor Shoffit of the Wichita Falls Police Department testified about
his observations of Appellant during their encounter at the gas station, and the
voluntariness of Appellant’s statements during his interview. Officer Shoffit stated
that, when he first interacted with Appellant at the gas station, he observed a “bluish
green” substance “hanging out of [Appellant’s] left nostril.” Officer Shoffit noted
that the color of the substance on Appellant’s nose was the same as the pills that
Officer King had recovered from Appellant’s vehicle.
After Appellant was transported to the Wichita County Jail, Officer Shoffit
read Appellant the required Miranda and statutory warnings. Appellant signed a
written acknowledgment that his rights had been read and explained to him before
the interview commenced and that he intended to waive his rights. Based on his
discussions with Appellant, Officer Shoffit determined that Appellant understood
the purpose of the interview and that he was competent to waive his rights and make
a statement knowingly and voluntarily, if he chose to do so.
When asked about whether Appellant was intoxicated, Officer Shoffit stated
that he believed that Appellant was under the influence of an illegal substance during
the interview based on the presence of the “substance on [Appellant’s] nose” and his
“slurred speech.” However, Officer Shoffit also testified that he believed, based on
his training and experience, that Appellant was not “so intoxicated or so under the
influence” that he did not understand the purpose of the interview and the attendant
decisions he could make. Moreover, Officer Shoffit noted that he asked Appellant
if he was under the influence of any drugs during the interview. According to Officer
Shoffit, Appellant stated that “he hadn’t taken anything” on the day of the interview,
but that he had ingested fentanyl “the night before,” and that he typically took “about
10 [pills] a day.”
4
Officer Scott Schenck of the Wichita Falls Police Department also testified
about his observations of Appellant and the voluntariness of his statements during
the interview. Officer Schenck testified that he first spoke with Appellant at the gas
station, and he recalled seeing residue on Appellant’s nose. In this regard, Officer
Schenck stated that, during the interview, Appellant admitted to using approximately
ten fentanyl pills per day, and that he “snorted” them. When asked by Appellant’s
trial counsel if Officer Schenck observed “a lot” of residue on Appellant’s face,
Officer Schenck stated that the extent to which a person’s drug usage would affect
that person was “dependent on how long [that person had] been using fentanyl.”
Officer Schenck testified that he believed that Appellant’s admitted fentanyl use was
“a higher amount” compared to the “usual amount that [he’s] heard people [say] that
they use [each] day.”
Officer Schenck testified that, during the interview, Appellant’s speech was
“slurred” and he “rock[ed] back and forth” in his chair. But, although Officer
Schenck believed that Appellant was “under the influence,” Officer Schenck
primarily attributed Appellant’s behavior to nervousness rather than drug use.
Officer Schenck noted that Appellant’s speech “[got] better at times during the
interview.” Additionally, Officer Schenck testified that Appellant cooperated with
law enforcement by providing the names of other individuals who were associated
with the distribution of fentanyl.
In addition to the officers’ testimony, Appellant’s recorded video interview
with Officers Shoffit and Schenck was admitted at trial and published to the jury.
During the charge conference, Appellant did not object to the form or substance of
the trial court’s charge, nor did he request the inclusion of a voluntariness instruction.

5
B. Admission of the Photograph During the Punishment Phase
During the punishment phase, Officer Shoffit testified to the contents of
Appellant’s cell phone, which included a photograph of a digital news article of an
arrest that involved a fentanyl overdose, titled “Man arrested for murder in fentanyl
death of MSU student.” After counsel for the State offered the photograph,
Appellant’s trial counsel objected to its admission during a bench conference on the
grounds of relevance and unfair prejudice.
At the bench conference, counsel for the State argued that the photograph was
relevant because the image showed Appellant’s awareness of fentanyl’s nature and
“its effects.” In response, Appellant’s trial counsel argued that the photograph was
irrelevant because the individual discussed in the news article was not Appellant,
and the photograph “seem[ed] more prejudicial than probative.” Appellant’s trial
counsel also argued that it “seem[ed] like [the photograph] would just be irrelevant
that [they] had multiple incidences [that Appellant] was aware of that there were
overdoses on fentanyl” because the State had “already established” Appellant’s
awareness through witness testimony. The trial court overruled Appellant’s
objections and admitted the photograph.
The State then offered text messages between Appellant and another
individual, “My Brother Chapo” (Chapo), which the trial court admitted without
objection. After these text messages were admitted, the following exchange
occurred between the State and Officer Shoffit, who was later asked to read the
contents of the text messages to the jury:
[THE STATE]: So this last message here . . . we’ll start
with that one. Is that -- is that a picture message? A
message with a picture attached to it?

[OFFICER SHOFFIT]: Yes.

6
[THE STATE]: And is the picture in that message State’s
Exhibit 22?

[OFFICER SHOFFIT]: Yes.

[THE STATE]: Is that State’s Exhibit 22?

[OFFICER SHOFFIT]: Sorry. Yes.

[THE STATE]: So who sent that picture?

[OFFICER SHOFFIT]: That was from [Appellant’s]
phone to [Chapo].
The State then questioned Officer Shoffit about Appellant and Chapo discussing the
contents of the news article that was depicted in the photograph. Later, Officer
Shoffit was asked if he had any reason to believe that Appellant had any connection
to the case that was described in the article; Officer Shoffit said that he did not.
Appellant’s trial counsel did not object to Officer Shoffit’s testimony concerning the
contents of Appellant’s text messages with Chapo or the article depicted in the
admitted photograph, nor did Appellant’s trial counsel cross-examine Officer Shoffit
on these issues.
II. Standards of Review
A. Charge Error
Reviewing complaints of charge error is a two-step process. Campbell v.
State, 664 S.W.3d 240, 245 (Tex. Crim. App. 2022) (citing Ngo v. State, 175 S.W.3d
738, 743 (Tex. Crim. App. 2005)). First, we must determine whether error exists.
Id. Second, if there is error, we must decide whether the appellant was harmed and
if the harm is sufficient to require reversal. Cyr v. State, 665 S.W.3d 551, 556 (Tex.
Crim. App. 2022) (citing Wooten v. State, 400 S.W.3d 601, 606 (Tex. Crim. App.
2013)); Ybarra v. State, 621 S.W.3d 371, 384 (Tex. App.—Eastland 2021, pet.
ref’d). The applicable standard of review to be utilized for charge error depends on
7
whether the claimed error was preserved. Jordan v. State, 593 S.W.3d 340, 346
(Tex. Crim. App. 2020).
The purpose of the trial court’s charge “is to inform the jury of the applicable
law and guide them in its application to the case.” Delgado v. State, 235 S.W.3d
244, 249 (Tex. Crim. App. 2007) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex.
Crim. App. 1996)). Charge error stems from the denial of a defendant’s right to have
the trial court provide the jury with instructions that correctly set forth the “law
applicable to the case.” Bell v. State, 635 S.W.3d 641, 645 (Tex. Crim. App. 2021)
(quoting TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)). Because the trial
court is obligated to correctly instruct the jury on the law applicable to the case, it is
ultimately responsible for the accuracy of its charge and the accompanying
instructions. Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (citing
Delgado, 235 S.W.3d at 249). Therefore, when the charge is inaccurate, the trial
court errs, and the error is subject to the appropriate harm analysis. See Bell, 635
S.W.3d at 645.
B. The Admission of Evidence
Whether to admit or exclude evidence at trial is a preliminary question that
the trial court determines. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633,
637–38 (Tex. Crim. App. 2012). We review a trial court’s admission or exclusion
of evidence for an abuse of discretion. Rhomer v. State, 569 S.W.3d 664, 669 (Tex.
Crim. App. 2019); see Davis v. State, 313 S.W.3d 317, 331 (Tex. Crim. App. 2010)
(The admission of photographs over an objection is within the sound discretion of
the trial court.). This standard also applies to a trial court’s decision to admit or
exclude extraneous-offense evidence. De La Paz v. State, 279 S.W.3d 336, 343
(Tex. Crim. App. 2009); Barron v. State, 630 S.W.3d 392, 410 (Tex. App.—Eastland
2021, pet. ref’d). We will not reverse a trial court’s decision to admit or exclude
evidence, and there is no abuse of discretion, unless that decision lies outside the
8
zone of reasonable disagreement. Beham v. State, 559 S.W.3d 474, 478 (Tex. Crim.
App. 2018). Furthermore, we will uphold a trial court’s evidentiary ruling, even if
the trial court’s reasoning is flawed, if it is correct on any theory of law that finds
support in the record and is applicable to the case. Henley v. State, 493 S.W.3d 77,
93 (Tex. Crim. App. 2016).
Pursuant to Article 37.07, Section 3(a) of the Code of Criminal Procedure,
evidence may be offered “as to any matter the court deems relevant to sentencing,”
including “the prior criminal record of the defendant, his general reputation, his
character, . . . the circumstances of the offense for which he is being tried, and . . .
any other evidence of an extraneous crime or bad act.” CRIM. PROC. art. 37.07
§ 3(a)(1) (West Supp. 2024). Deciding what punishment to assess is a normative
process that is not intrinsically fact bound. Beham, 559 S.W.3d at 478. However,
the concept of relevance as set out in Rule 401 in the Texas Rules of Evidence plays
a role in the trial court’s admissibility determination of punishment evidence. Id.
Evidence is relevant to sentencing within the meaning of the statute “if it is ‘helpful
to the jury in determining the appropriate sentence for a particular defendant in a
particular case.’” Id. at 479 (quoting McGee v. State, 233 S.W.3d 315, 318 (Tex.
Crim. App. 2007)).
“[T]he trial court has wide discretion to deem virtually any matter relevant to
a proper sentence.” Beham, 559 S.W.3d at 480. It abuses its discretion “only when
the reviewing court can say with confidence that by no reasonable perception of
common experience does the proffered evidence inform a legitimate area of
normative inquiry.” Id. (internal quotation marks omitted).
III. Analysis
A. Voluntariness Instruction
In his first issue, Appellant argues that the trial court erred when it failed to
charge and instruct the jury on the general voluntariness of his statements. See CRIM.
9
PROC. art. 38.22, § 6. The record shows, and Appellant concedes, that he neither
requested the inclusion nor did he object to the omission of a voluntariness
instruction in the trial court’s charge. Nevertheless, Appellant now contends on
appeal that the trial court was required to submit this instruction because it was “the
law applicable to the case.” CRIM. PROC. art. 36.14. Here, we must first address
whether there is error in the charge; if there is none, our analysis ends. See Campbell,
664 S.W.3d at 245 (citing Ngo, 175 S.W.3d at 743); Loza v. State, 659 S.W.3d 491,
497 (Tex. App.—Eastland 2023, no pet.) (citing Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012)).
A trial court has an absolute duty to sua sponte prepare a charge that accurately
sets out the law that is applicable to the specific charged offense. See Oursbourn v.
State, 259 S.W.3d 159, 179–81 (Tex. Crim. App. 2008). Article 38.22, Section 6,
provides for a general voluntariness instruction by which the jury is asked to
determine whether a defendant’s statement was made voluntarily. Id. at 173. When
an applicable statute requires an instruction under certain circumstances, that
instruction is a part of the “law applicable to the case,” and the trial court errs if it
fails to so instruct the jury. Id. at 179–81. Thus, to obtain a reversal of his conviction
because of the trial court’s failure to sua sponte provide what Appellant contends
was a required instruction, Appellant must show that Article 38.22, Section 6 was
the “law applicable to the case.” Estrada v. State, 313 S.W.3d 274, 299 (Tex. Crim.
App. 2010) (citing Oursbourn, 259 S.W.3d at 174–76).
A voluntariness instruction under Article 38.22, Section 6 is only required
“where a question is raised as to the voluntariness of a statement [made by] an
accused” and the issue of voluntariness has been litigated in some manner before a
jury. Oursbourn, 259 S.W.3d at 173–76 (quoting CRIM. PROC. art. 38.22, § 6); see
Aldaba v. State, 382 S.W.3d 424, 429 (Tex. App.—Houston [14th Dist.] 2009, pet.
ref’d); Miller v. State, 666 S.W.2d 269, 274 (Tex. App.—Dallas 1984, pet. ref’d).
10
Although a factual dispute is not necessary to justify the submission of this
instruction, “some evidence must have been presented to the jury that the
defendant’s confession was not given voluntarily.” Oursbourn, 259 S.W.3d at 176
n.59 (quoting Vasquez v. State, 225 S.W.3d 541, 545 (Tex. Crim. App. 2007)). As
such, a defendant is not entitled to an Article 38.22, Section 6 voluntariness
instruction if no reasonable jury could find that the facts presented at trial, whether
disputed or undisputed, rendered a defendant incapable of making a voluntary
statement. See Estrada, 313 S.W.3d at 300 (citing Oursbourn, 259 S.W.3d at 175–
76); Day v. State, 696 S.W.3d 720, 736 (Tex. App.—San Antonio 2024, pet. ref’d).
Thus, when no evidence is presented to a jury to raise the issue of whether a
defendant’s statements were voluntarily made, the trial court does not err if it does
not include such an instruction in its charge. See Oursbourn, 259 S.W.3d at 175;
Aldaba, 382 S.W.3d at 429 (citing Vasquez, 225 S.W.3d at 545).
Appellant contends that the trial court was required to submit a voluntariness
instruction in its charge because the record contains evidence suggesting that he was
intoxicated or under the influence of drugs or other substances at the time of his
interview, and thus he could not have “knowingly, intelligently, and voluntarily”
waived his rights under Article 38.22. See CRIM. PROC. art. 38.22, §§ 2(a), 3(a)(2).
The State responds that, in support of his argument, Appellant relies on his testimony
that he had taken fentanyl the day before the interview and thus he may have been
impaired. The State asserts that Appellant “directs this court to no evidence by
which a reasonable jury could have determined” that he was incapable of making a
voluntary statement because of his alleged impairment. We agree with the State.
A defendant’s statement may be used against him if the defendant made it
freely and voluntarily and without compulsion or improper persuasion. CRIM. PROC.
art. 38.21 (West 2023). “The determination of whether a confession is voluntary is
based on an examination of the totality of circumstances surrounding its
11
acquisition.” Wyatt v. State, 23 S.W.3d 18, 23 (Tex. Crim. App. 2000) (quoting
Penry v. State, 903 S.W.2d 715, 744 (Tex. Crim. App. 1995)); see Lopez v. State,
610 S.W.3d 487, 497 (Tex. Crim. App. 2020). Intoxication is one of many factors
that is considered in determining whether a statement is made voluntarily; however,
one’s intoxication does not render a defendant’s statements involuntary per se. See
Jones v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996). Therefore, “[w]hen
there is evidence of the defendant’s use of narcotics, medications, or other mind-
altering agents, the question becomes whether those intoxicants prevented the
defendant from making an informed and independent decision.” Williams v. State,
502 S.W.3d 262, 272–73 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (citing
Paolilla v. State, 342 S.W.3d 783, 792 (Tex. App.—Houston [14th Dist.] 2011, pet.
ref’d)); see Jones, 944 S.W.2d at 651.
Here, Appellant argues that he properly raised the issue of voluntariness
based, in part, on: (1) testimony about Appellant’s fentanyl addiction; (2) the
officers’ observations and testimony regarding Appellant’s recent use of fentanyl
prior to his arrest; (3) the testimony of Officer King and Officer Shoffit that they
believed Appellant was “under the influence” when he made his statements; and
(4) Officer King’s testimony that he was concerned for Appellant’s well-being
because of his fentanyl use. While the record shows that multiple witnesses believed
that Appellant could have been under the influence of drugs or other intoxicants
when his statements were made, this evidence alone does not demonstrate that
Appellant was incapable of making an independent or informed decision to make
such statements voluntarily. Jones, 944 S.W.2d at 651. Further, Appellant does not
identify or direct us to any testimony or other evidence in the record, and we have
found none, which shows that his statements were made involuntarily, or that, during
the interview, he was impaired because of his drug use to such an extent that he
could no longer understand the purpose of the interview, what was occurring, or
12
make an informed decision as to whether he should speak to law enforcement. See
Williams, 502 S.W.3d at 272; see also Williams v. State, No. 09-14-00194-CR, 2016
WL 5417449, at *24 (Tex. App.—Beaumont Sept. 28, 2016, pet. ref’d) (mem. op.,
not designated for publication).
In this case, there is no evidence upon which a reasonable jury could conclude
that Appellant’s statements to law enforcement were made involuntarily. Officer
Shoffit testified that although Appellant appeared to be “under the influence,”
Appellant was capable of deciding whether to voluntarily or knowingly waive his
rights before making any statement. Similarly, Officer Schenck testified that
Appellant understood the questions he was asked during the interview, and he
recalled that Appellant provided helpful information to law enforcement in response
to their questions. The officers’ testimony is corroborated by the video recording of
Appellant’s interview, which demonstrates that (1) Appellant was informed of his
rights prior to the commencement of the interview, and (2) Appellant affirmatively
waived his rights. Moreover, the recorded interview also shows that Appellant
exhibited a rational understanding of law enforcement’s questions and inquiries, and
that he provided responsive answers to their questions during the interview.
While there is some evidence that Appellant may have ingested fentanyl pills
the day before his arrest, there is no evidence that demonstrates the quantity of drugs,
if any, Appellant had taken prior to his interview, or when such drugs were ingested
by him before his arrest. See Pena v. State, 832 S.W.2d 697, 700 (Tex. App.—
Corpus Christi–Edinburg 1992, pet. ref’d). Furthermore, when asked about his drug
use, Appellant denied having taken any pills “that day.” Thus, even if Appellant had
ingested fentanyl on the day he was arrested, there is no evidence that this drug use
rendered his statements involuntary during the interview. See Butler v. State, 872
S.W.2d 227, 236 (Tex. Crim. App. 1994); Aldaba, 382 S.W.3d at 429 (citing

13
Vasquez, 225 S.W.3d at 545); Pena, 832 S.W.2d at 700; see also Davis v. State, 313
S.W.3d 317, 338 (Tex. Crim. App. 2010).
Therefore, because there is no evidence from which a rational jury could
reasonably find that Appellant’s statements were made involuntarily, we conclude
that the trial court did not err by not including an Article 38.22, Section 6 instruction
in its charge. See Oursbourn, 259 S.W.3d at 181; Jones, 944 S.W.2d at 651.
Accordingly, we overrule Appellant’s first issue.
B. Admission of Evidence at the Punishment Phase
In his second issue, Appellant argues that the trial court erred when it admitted
a photograph of a news article concerning a fentanyl-related death (State’s Exhibit
No. 22) during the punishment phase because this evidence was irrelevant, unduly
prejudicial, and its admission harmed Appellant. In response, the State argues, in
part, that Appellant waived his complaint because Appellant failed to object when
the same or similar evidence was offered by the State through the admission of other
uncontested evidence, namely: (1) Appellant’s text messages (State’s Exhibit
No. 23), which contained the same complained-of photograph; and (2) Officer
Shoffit’s testimony concerning the content of Appellant’s text messages to Chapo
where he discussed the article depicted in the photograph.
To preserve a complaint for appellate review, the complaining party must
present a specific, timely objection or motion to the trial court that states the specific
grounds for the desired ruling. TEX. R. APP. P. 33.1(a)(1)(A); Montelongo v. State,
623 S.W.3d 819, 822 (Tex. Crim. App. 2021); Burg v. State, 592 S.W.3d 444, 448–
49 (Tex. Crim. App. 2020); see TEX. R. EVID. 103(a); Arevalo v. State, 675 S.W.3d
833, 844–45 (Tex. App.—Eastland 2023, no pet.). Furthermore, a party must object
each time inadmissible evidence is offered unless the complaining party obtains a
running objection or a ruling from the trial court on his complaint. Lopez v. State,
253 S.W.3d 680, 684 (Tex. Crim. App. 2008); see Geuder v. State, 115 S.W.3d 11,
14
13 (Tex. Crim. App. 2003); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.
1995); Turner v. State, 805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Otherwise,
“[a]ny purported error in the admission of complained-of evidence is cured when the
same or similar evidence is offered and admitted without objection elsewhere during
[a defendant’s] trial.” Arevalo, 675 S.W.3d at 846 (citing Johnson v. State, 803
S.W.2d 272, 291 (Tex. Crim. App. 1990)); Ruiz v. State, 631 S.W.3d 841, 864 (Tex.
App.—Eastland 2021, pet. ref’d); Nicholls v. State, 630 S.W.3d 443, 449 (Tex.
App.—Eastland 2021, pet. ref’d) (citing Valle v. State, 109 S.W.3d 500, 509 (Tex.
Crim. App. 2003)); see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998).
In this instance, even if we concluded that the trial court abused its discretion
when it admitted the complained-of photograph during the punishment phase, which
we do not, any such error would not have resulted in harm to Appellant. As we have
said, an evidentiary ruling regarding the admissibility of evidence will not result in
reversal when the same evidence is admitted without objection. Leday, 983 S.W.2d
at 717–18 (“It is well established that the improper admission of evidence does not
constitute reversible error if the same facts are shown by other evidence which is not
challenged.” (quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex. Crim. App.
1978))). Here, Appellant did not object to the admission of Appellant’s text
messages with Chapo, and Officer Shoffit testified, without objection, that the text
messages contained the same photograph that Appellant had previously objected-to
outside the presence of the jury. Thus, any alleged error in the trial court’s decision
to admit the complained-of photograph over Appellant’s earlier objection was
waived when the same evidence was admitted, without objection, through

15
Appellant’s text messages to Chapo and Officer Shoffit’s testimony.4 Arevalo, 675
S.W.3d at 847; see Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004)
(citing Valle, 109 S.W.3d at 509); Clay v. State, 361 S.W.3d 762, 766 (Tex. App.—
Fort Worth 2012, no pet.).
Furthermore, Appellant also waived any purported error in the trial court’s
admission of the photograph because “[a]n objection to photographic evidence is
waived if the same information contained in the photograph is conveyed to the jury
in some other form.” Ford v. State, 919 S.W.2d 107, 117 (Tex. Crim. App. 1996)
(quoting Havard v. State, 800 S.W.2d 195, 205 (Tex. Crim. App. 1989)). After the
trial court overruled Appellant’s relevance and prejudice objections to the admission
of the photograph, counsel for the State asked Officer Shoffit several questions about
Appellant’s discussion with Chapo concerning the fentanyl article; Appellant did not
assert any objection to this testimony. As such, we conclude that Officer Shoffit’s
testimony established the same facts that the State sought to illicit by the admission
of the photograph itself—that Appellant was aware of the contents of the article and
the dangers of fentanyl use. See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim.
App. 2003) (holding that while appellant preserved error as to the admission of two
photos, she did not preserve error as to all other evidence of her gang affiliation);

4
We note that while Appellant specifically objected to the admission of the photograph outside of
the presence of the jury, Appellant’s subsequent affirmative “no objection” response to the admission of
State’s Exhibit No. 23, which also contained the objected-to photograph, “by itself, serve[s] as an
unequivocal indication that a waiver was both intended and understood.” Thomas v. State, 408 S.W.3d
877, 884–86 (Tex. Crim. App. 2013) (holding that a defendant’s “no objection” statement generally waives
a previously preserved error unless the record “plainly demonstrates” that the defendant and trial court
understood otherwise); see Upchurch v. State, 656 S.W.3d 170, 176–77 (Tex. App.—Fort Worth 2022, no
pet.); Redmond v. State, 629 S.W.3d 534, 546 n.14 (Tex. App.—Fort Worth 2021, pet. ref’d); Rivera v.
State, No. 11-23-00104-CR, 2024 WL 4151926, at *2 (Tex. App.—Eastland Sept. 12, 2024, no pet.) (mem.
op., not designated for publication); see also Stairhime v. State, 463 S.W.3d 902, 906 (Tex. Crim. App.
2015) (holding that any ambiguity regarding whether an abandonment was intended or understood should
be resolved in favor of finding waiver); Sharper v. State, 485 S.W.3d 612, 616 (Tex. App.—Texarkana
2016, pet. ref’d) (“Since the record does not plainly demonstrate that [Appellant] did not intend to abandon
his Sixth Amendment objections, we find that [Appellant] has failed to preserve this error for our review.”).
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Redmond, 629 S.W.3d at 546 n.14 (“[A]ny error in the admission of such testimony
was rendered harmless by [the appellant’s] failure to object to evidence of the same
underlying fact; namely, a photograph depicting [the appellant’s] bank robbery);
Clay, 361 S.W.3d at 767 (“[B]ecause Wallace provided testimony about the
Louisiana records without objection before and after appellant’s objection to the
admission of the records and because appellant failed to obtain a running objection,
we conclude that he forfeited his objection to the records’ admission.”).
We conclude that the trial court did not abuse its discretion when it admitted
the complained-of photographic evidence. See Arevalo, 675 S.W.3d at 846 (citing
Johnson, 803 S.W.2d at 291); Nicholls, 630 S.W.3d at 449 (citing Valle, 109 S.W.3d
at 509).
Accordingly, we overrule Appellant’s second issue.
IV. This Court’s Ruling
We affirm the judgment of the trial court.

W. STACY TROTTER
JUSTICE

September 25, 2025
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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