Reginald Guillory v. the State of Texas

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________
NO. 09-23-00313-CR
NO. 09-23-00314-CR
________________

REGINALD GUILLORY, Appellant

V.

THE STATE OF TEXAS, Appellee
________________________________________________________________________

On Appeal from the 252nd District Court
Jefferson County, Texas
Trial Cause Nos. F22-40303, F22-40305
________________________________________________________________________

MEMORANDUM OPINION

A jury convicted Reginald Guillory of two counts of aggravated assault

against two police officers, Derek Jennische and Nicholas Lamb. See Tex. Penal

Code Ann. § 22.02(a)(2). The jury assessed punishment at twenty-five years’

incarceration in the Texas Department of Criminal Justice on each count; the judge

sentenced him accordingly and ordered the sentences be served concurrently. In

three issues on appeal, Guillory challenges the sufficiency of the evidence to support

1
the convictions, the trial court’s response to a jury question, and evidentiary rulings

during the punishment phase. We affirm.

Background

Derek Jennische

Derek Jennische is a police officer with the Beaumont Police Department. On

July 3, 2022, Jennische was on duty with his partner, officer Nicholas Lamb. The

pair was dispatched to Glen Oaks Apartments in Beaumont for a “civil standby so

Makhia Bell could collect some of her belongings from Apartment 39.” Jennische

explained that a civil standby is “where the one person calls the police to -- so that

way they can gather either belong[ing]s or exchange belongings with another person

while the police standby and make sure nothing goes wrong.” Jennische arrived at

the apartment complex, met Bell, and verified that she was at the apartment to collect

her belongings. Jennische testified that on that day, he was in his police uniform with

his badge visible. The officers then walked with Bell to a third-floor apartment, and

Jennische knocked on the door and announced himself as a police officer. Jennische

noted that the apartment door had a peephole. Jennische described his announcement

as “loud and clear” and consistent with his training. Someone on the other side of

the door asked who was there, and Jennische again “loud and clear” announced that

he was a police officer. The person on the other side of the door then said “Huh?”

and Jennische again announced “[l]oud and [c]lear” that he was a police officer for

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a third time. According to Jennische, at this point, the door “swung open, and before

me was a black male I saw in a white T-shirt, white tank top and just with a gun

pointed straight at me.” Next to this man, was another black male “holding a

firearm[] as well.” Jennische then heard “the click of a weapon as if the trigger was

pulled and the firing mechanism was activated.” After hearing the click of a gun, the

individuals then immediately turned in the other direction into the apartment and ran

out of sight, slamming the door behind them. Jennische then heard glass breaking.

Jennische, pulled his gun, called for backup, and demanded that any residents of the

apartment come outside and be detained. Eventually, two black males, Tyree Simon

and Jalon Nixon, emerged from the apartment. Jennische testified that when Nixon

came out of the apartment, his appearance was different, noting that “[a]t first, he

was wearing a yellow tank top and he had long, just hair. It was distinct to tell the

difference of hairstyles. And when he came out, he was wearing a white tank top,

still that same distinct long hairstyle.” Jennische and Lamb then entered the

apartment. Once they entered the apartment, Jennische found a loaded 9mm gun on

the floor and disabled it. Jennische then approached the living room of the apartment

and observed “a clearly broken window that was large enough for someone to put

themselves through.” He described the man that pointed a gun at him as “a black

male, dark skin, wearing a white tank top and a short hairstyle[,]” with a “short,

stalky [sic] build[,]” and stated that Guillory matched this description. He agreed

3
that if Guillory had cuts during his police interview, the cuts could be consistent with

someone jumping out of a window. A copy of Jennische’s body camera video

footage was admitted a trial and played for the jury.

During cross-examination, Jennische agreed that per police protocol, after he

knocked on the door and announced his presence, he stepped to the side of the door.

He also agreed that before trial, he did not describe the man who opened the door as

stocky or stout. On redirect, Jennische stated that Nixon and Guillory did not have

similar builds and hairstyles, noting that Nixon was taller and at that time his hair

was much longer than Guillory’s hair.

Nicholas Lamb

Nicholas Lamb is a police officer with the Beaumont Police Department and

was with Jennische on July 3, 2022. When he arrived at Glen Oaks Apartments, he

was in his uniform with his badge. Once he and Jennische arrived, they met with

Bell and went with her to an apartment on the third floor. Once they reached the

apartment, Jennische knocked on the door and announced themselves as police

officers. He described Jennische’s voice as “loud[,]” and “pretty stern[.]” He then

heard a voice ask who was there, and Jennische again announced in “[a] little bit

more elevated” voice that it was the police. After being questioned again by someone

behind the door, Jennische announced their presence a little louder for a third time.

Suddenly the door opened, and there “were several people standing in the doorway

4
and there was a firearm pointed at us.” Lamb testified that initially he saw only one

gun, but after reviewing body camera footage he observed two guns. Lamb stated he

feared for his life. Lamb then “heard a metallic click” that “sounded like a dry fire

of a pistol[,]” which he described as when “[s]omeone had pulled the trigger on a

pistol and the mechanism activated but a round did not go off.” Lamb then pulled

his firearm and “tactfully withdrew[,]” the door immediately closed, and he heard

breaking glass. In a very loud voice Lamb ordered the occupants of the apartment to

come out. After several commands, Simon and Nixon exited the apartment. When

Lamb and Jennische entered the apartment, they found a black semiautomatic pistol.

Lamb then observed a broken window leading to the exterior of the apartment

complex. He described the man who had the weapon when the door was open as “a

black male, athletic-build[,]…a white shirt and dark-color pants of some sort[]” with

short hair. A copy of his body camera video was admitted at trial and played for the

jury.

Gisela Villanueva

Gisela Villanueva testified that she currently works as a manager at a

restaurant located next to Glen Oaks Apartments. She testified that the restaurant has

several cameras, including cameras from the front and rear of the business.

Villanueva authenticated surveillance video from the restaurant on July 3, 2022,

which was admitted and played for the jury.

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Heather Wilson

Heather Wilson testified that she is a detective with the Beaumont Police

Department. On July 3, 2022, she was notified by her supervisor “that two officers

were involved in a situation where they were the victim[,] and I needed to respond.”

Wilson said she was instructed to interview several people at the scene. Wilson

described the scene as “hectic” when she arrived and noted there was a large police

presence. Wilson took the lead on the investigation. She observed the broken

window during her walkthrough of the apartment and noted, “It appeared something

had went out of the window from inside the building[,]” because “the way the glass

kinda went out, and the blinds were out, as well. You could look down through the

window and see the blinds and the shattered glass on the ground below.” Wilson

obtained the suspect’s description who fled the scene, stating she was told he was a

“[b]lack male, dark complexion, kinda stocky build wearing a white tank top, short

haircut.” She interviewed T.J. Landry, a tenant listed on the apartment lease and

described him as “tall, slim. . . [with] hair that’s kinda longer, braided style.” She

watched the surveillance video provided by Villanueva and stated there was an

individual on the video that resembled Landry, noting it was clear the individual had

long hair and a dark shirt. Another person appears on the video, and Wilson testified

that person “appears to be [wearing] a white tank top[,]” and appeared to be running

from Glen Oaks Apartments.

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Eventually, two days after news of the incident and details of the investigation

were released to the media, Wilson interviewed Guillory. Wilson identified Guillory

in court as the man who appeared for the interview. She described Guillory’s

demeanor during the interview as “evasive, non-truthful at times.” A video of the

interview was admitted into evidence and played for the jury. Guillory stated that

Landry was involved in a fight in the parking lot earlier in the day, and that Guillory

held Landry’s gun for him.

During his interview with Wilson, Guillory admitted that he was in Landry’s

apartment on July 3, 2022. He told Wilson that he heard a knock at the door but

denied that he pointed a gun at the officers. He stated that he jumped out of the

window because he saw guns and was scared. Guillory provided a name to

corroborate his story, but Wilson was unable to verify the acquaintance or the story.

During the interview, Guillory asked to see a video, which Wilson interpreted as an

indication “[t]hey want to kinda get ahead of their story and kinda justify like that.”

She spoke about the different physical appearances between Nixon, Simon and

Guillory, explaining, “Mr. Guillory is shorter than them, kinda stockier, kind of an

athletic-build.” Wilson testified that their “[h]airstyle is different, as well. Mr.

Guillory had short hair at the time. And these two you can see has kinda the braided,

longer hair.” At the conclusion of her investigation, Wilson charged Guillory with

aggravated assault against a public servant based on “the video itself[,] [and] [t]he

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officers’ body-worn camera video. It appears to be Mr. Guillory in the video. He

matched the description provided that you see in the [restaurant] video and as we

saw him in person, and, like I said, witness testimonies and the other occupants in

the apartment place him there, as well.”

Michelle Ceja

Michelle Ceja is a crime scene technician with the Beaumont Police

Department. She explained her job duties include being “called out to different types

of crime scenes, whether it’s, you know, homicide, suicide, robberies[;] [a]nything

that officers or detectives feel that my services may be needed[,]” including

documenting, collecting, and photographing evidence. Ceja processed and

documented the evidence collected on July 3, 2022, and copies of her photographs

were admitted at trial. Included among the exhibits were photos of the apartment

with its broken window below which were strewn broken glass, blinds and other

debris. In addition to photographing the scene, Ceja took pictures of Guillory at the

police station on July 5, 2022. The photos show cuts on Guillory’s head and back.

At the conclusion of trial, the jury found Guillory guilty on both charges and

subsequently assessed punishment at twenty-five years of incarceration on each

charge; the trial court sentenced him accordingly and ordered the sentences to be

served concurrently. Guillory timely appealed.

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Issue One

In his first issue, Guillory argues the evidence was insufficient to support the

jury’s verdict because the State’s witnesses “were unable to sufficiently identify

appellant as the perpetrator of the offense.” In any criminal prosecution, the State

must prove beyond a reasonable doubt the defendant is the person who committed

the offense. McCullen v. State, 372 S.W.2d 693, 695 (Tex. Crim. App. 1963). Direct,

in-court identification, although preferred, is not required. Purkey v. State, 656

S.W.2d 519, 520 (Tex. App.—Beaumont 1983, pet. ref’d). Identity may be proven

by direct or circumstantial evidence, combined with reasonable inferences. Gardner

v. State, 306 S.W.3d 274, 285 (Tex. Crim. App. 2009); Clark v. State, 47 S.W.3d

211, 214–15 (Tex. App.—Beaumont 2001, no pet.).

The jury is the exclusive judge of the credibility of the evidence and the weight

to be given to that evidence. Metcalf v. State, 597 S.W.3d 847, 855 (Tex. Crim. App.

2020). As such, the jury is responsible for resolving conflicts in the testimony, is

free to believe some, all or none of a witness’s testimony, and may assign as much

or as little weight to a witness’s testimony as it sees fit. Id. Jurors may also draw

reasonable inferences from the evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007) “[A]n inference is a conclusion reached by considering other facts

and deducing a logical consequence from them.” Id. at 16.

9
When examining whether a criminal conviction is supported by legally

sufficient evidence, we consider all the evidence, viewed in the light most favorable

to the verdict, along with the inferences that could reasonably be drawn from the

evidence. See id. at 13. We do not assess the credibility of the evidence, reweigh the

evidence, nor substitute our judgment for that of the jury. See Williams v. State, 235

S.W.3d 742, 750 (Tex. Crim. App. 2007). The evidence is legally sufficient to

support the conviction if any rational trier of fact could have found each of the

essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 318–19 (1979). “Each fact need not point directly and independently

to a defendant’s guilt, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Balderas v. State, 517 S.W.3d

756, 766 (Tex. Crim. App. 2016) (citation omitted); see also Garcia v. State, 667

S.W.3d 756, 761–62 (Tex. Crim. App. 2023) (citation omitted) (“A proper review

of evidentiary sufficiency considers the cumulative force of the evidence.”).

Guillory admitted in his statement that he was in the apartment that day.

Testimony showed that the police interviewed Nixon, Simon, and later Landry, and

multiple witnesses described their appearances on the day in question. The jury also

heard from multiple witnesses that one of the men holding a gun was short and

stocky, wearing a white shirt, and had short hair, fitting Guillory’s description and

contrasting with the appearances of the other men in the apartment that day, all of

10
whom had noticeably distinct features. The jury could draw reasonable inferences

from the fact Guillory jumped out of a third-floor window; it was not required to

accept Guillory’s explanation that he fled merely because he saw guns and was

scared. Evidence of flight is circumstantial evidence from which the jury may

reasonably have inferred guilt. Foster v. State, 779 S.W.2d 845, 859 (Tex. Crim.

App. 1989). The jury also viewed the video recordings from police body cameras as

well as surveillance video from a nearby restaurant and could compare the person in

the recordings with the person in the courtroom and decide whether he was the same

person. Based on this record, we conclude the evidence is sufficient to prove beyond

reasonable doubt that Guillory was the man who committed aggravated assault by

pointing a deadly weapon at Officers Jennische and Lamb. We overrule issue one.

Issue Two

In his second issue, Guillory argues the trial court committed reversible error

in instructing the jury regarding whether the sentences in his two cases would be

served consecutively or concurrently. While the jury was deliberating Guillory’s

punishment it sent the trial judge the following note:

If convicted (this is an example) of 20 years per offense, would Mr.
Guillory serve 20 years or 40 (i.e., can he serve both terms at [the] same
time or back to back?)

The trial judge told both the State and Defense that it would provide a reply,

and the following exchange occurred:

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[THE COURT]: After some discussion, it’s my opinion that if I send in
the law under Article 42.08(A), which …We’re on the record right now.
Which reads under Subsection A (Reading): When the same defendant
has been convicted in two or more cases, judgment and sentence shall
be pronounced in each case in the same manner as if there had been but
one conviction.

There’s more to that section that does not apply and in my opinion
would only serve to confuse the jury in this case. These were offenses
from the same date. They cannot be served cumulative. So, that’s my -
- what I believe my ruling would be to send into the jury. Are there any
objections to that?

[THE STATE]: None from the State, Judge.

[DEFENSE COUNSEL]: Defense objects.

THE COURT: Anything else?

[DEFENSE COUNSEL]: I object.

THE COURT: Based on? I mean, you don’t have to say anything else.
But do you have any –

[DEFENSE COUNESL]: I think it violates his due process. I object.

THE COURT: Okay. Then that is overruled. I will send that section of
Article 42.08(A) into the jury.

Tracking the first sentence of Texas Code of Criminal Procedure article

42.08(a), the trial court instructed the jury, “When the same defendant has been

convicted in two or more cases, judgment and sentence shall be pronounced in each

case in the same manner as if there had been but one conviction.” See Tex. Code

Crim. Proc. Ann. art. 42.08(a). After receiving this instruction, the jury reached its

verdict and sentenced Guillory to twenty-five years on each conviction.
12
“When the trial judge responds substantively to a jury question during

deliberations, that communication essentially amounts to an additional or

supplemental jury instruction.” Daniell v. State, 848 S.W.2d 145, 147 (Tex. Crim.

App. 1995) (citation omitted). We review alleged jury charge error using a two-step

process. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). First, we

determine whether error exists in the charge, and if we find error, we review the

record to determine whether the error caused sufficient harm to warrant reversal. Id.

When, as here, the defendant properly objected to the charge, reversal is required if

some harm to the defendant resulted from the error. Mendez v. State, 545 S.W.3d

548, 552 (Tex. Crim. App. 2018) (citing Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1985) (op. on reh’g)). In determining whether some harm resulted,

“‘the actual degree of harm must be assayed in light of the entire jury charge, the

state of the evidence, including the contested issues and weight of probative

evidence, the argument of counsel and any other relevant information revealed by

the record of the trial as a whole.’” Walker v. State, 300 S.W.3d 836, 847 (Tex.

App.—Fort Worth 2009, pet. ref’d) (quoting Almanza v. State, 686 S.W.2d at 171).

Sentences for multiple offenses may run consecutively or concurrently;

however, a trial court’s discretion is limited by section 3.03 of the Penal Code, which

provides:

When the accused is found guilty of more than one offense arising out
of the same criminal episode prosecuted in a single criminal action, a
13
sentence for each offense for which he has been found guilty shall be
pronounced. Except as provided by Subsection (b), the sentences shall
run concurrently.

Tex. Penal Code Ann. § 3.03(a). The statute’s definition of “criminal episode”

includes two or more offenses that are “committed pursuant to the same transaction.”

Id. § 3.01. A defendant is prosecuted in a “single criminal action” whenever the

allegations and evidence of more than one offense are presented in a single trial or

plea proceeding. LaPorte v. State, 840 S.W.2d 412, 415 (Tex. Crim. App. 1992),

overruled on other grounds by Ex parte Carter, 521 S.W.3d 344, 347 (Tex. Crim.

App. 2017).

Because Guillory’s cases involved simultaneous commission of the same

offense against two victims, his crimes arose out of the same criminal episode as

defined by section 3.01. See Cazarez v. State, 606 S.W.3d 549, 563 (Tex. App.—

Houston [1st Dist.] 2020, no pet.) (quoting Tex. Penal Code Ann. § 3.01(2))

(rejecting the State’s argument that the offenses were not the same criminal episode

because they involved different complainants); see also Whaley v. State, Nos. 05-

18-01255-CR, 05-18-01257-CR, 2020 Tex. App. LEXIS 527, at *4–5 (Tex. App.—

Dallas Jan. 21, 2020, no pet.) (mem. op., not designated for publication) (“When the

gravamen of both offenses involves assaultive conduct committed by similar manner

and means, the offenses are deemed part of the same criminal episode.”).

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Texas Penal Code section 3.03(b) allows sentences for certain offenses to run

consecutively. Tex. Penal Code Ann. § 3.03(b). However, Guillory’s crimes of

aggravated assault in violation of section 22.02(a)(2) of the Penal Code are not

included among the offenses listed in section 3.03(b). “[I]t is not for us to add or

subtract to that which the Legislature has expressed.” Parfait v. State, 120 S.W.3d

348, 350 (Tex. Crim. App. 2003). Because Guillory was prosecuted in a single

criminal action for a single criminal episode involving offenses other than those

enumerated in article 3.03(b), the trial court correctly instructed the jury pursuant to

article 42.08(a) that Guillory’s sentences would be treated as if he had been

convicted of but one offense. Therefore, we conclude the trial court’s response to

the jury’s question was not error, and we need not review whether any harm resulted.

See Almanza, 686 S.W.2d at 171. We overrule Guillory’s second issue.

Issue Three

In his final issue, Guillory challenges the trial court’s preventing him from

presenting exculpatory evidence to the jury to counter the State’s evidence that

Guillory admitted he possessed a firearm on the day of the incident. During the guilt

innocence phase of trial, Detective Wilson testified that during Guillory’s police

interview, he admitted to having held Landry’s gun during a fight that occurred

earlier in the day in the apartment complex’s parking lot. The jury also heard the

recorded interview. In response, the defense offered, and the trial court admitted,

15
Defense Exhibit One, a copy of Guillory’s guilty plea in federal court for possession

of a firearm, which included a document titled “FACTUAL BASIS” signed by

Guillory, which states:

On July 3, 2022, officers discovered a video on Facebook which
depicted Reginald Guillory Jr. (Guillory) fighting with an individual
outside of the Glen Oaks Apartments, located in Beaumont, Texas, in
the Eastern District of Texas. In that video Guillory was seen
possessing a firearm with an extended magazine. In a post arrest, post
Miranda statement, Guillory admitted it was him in the video and the
firearm he possessed in that video was a Taurus that belonged to a
friend. Police recovered a Taurus, Model: C3C, 9mm caliber pistol,
bearing serial number ABE550704, from the apartment of the friend
Guillory had mentioned. Guillory knew it was the Taurus because he
was holding it after the friend in the apartment whom it belonged to
handed it to him. He also admitted to being on parole and knew he
wasn’t supposed to have a firearm.

Prior to knowingly possessing the firearm on July 3, 2022, Guillory
knew he was a previously convicted felon, having been convicted of:

• Retaliation, in the Criminal District Court of Jefferson, County,
Texas, in cause number 19-32742, on January 1, 2022.

During the punishment phase of trial, Guillory testified about the charges and

guilty plea in federal court:

[DEFENSE COUNSEL]:First off, I want to go -- State has alleged
some other priors and some explanations in reference to those, okay?

A. Yes, sir.

Q. No. 1 is…that -- well, and Defendant’s Exhibit No. 1. You’re
familiar with your felony, right?

A. Yes, sir.

16
Q. Based on this incident, were you also indicted for the felony?

A. Yes, sir.

Q. And based on that, that was referred to the U.S. Attorneys -- it is
your understanding it was referred to the U.S. Attorney’s Office,
correct?

A. Yes, sir.

Q. The full -- the full incident, correct?

A. Yes, sir.

Q. Everything that was told this week, correct?

A. Yes, sir.

Q. And you were indicted, and it’s still pending, right?

A. Yes, sir.

Q. You have not been finally sentenced for felon in possession of a
firearm, correct?

A. No, sir.

Q. This. This charge in the federal is felon in possession of firearm, is
it not?

A. Yes, it is, sir.

Q. That’s pending?

A. Yes, sir.

Q. And the reason why, is it because of the retaliation conviction out of
the CDC, Criminal District Court, next door?

A. Yes, sir.
17
Q. Remember that?

A. Yes, sir.

Q. Okay. And that’s what they -- that’s what they filed, right?

A. (Nodding head up and down)

Q. In fact, included in this, do you remember signing the factual basis.
I show you the last page. Is that your signature?

A. Yes, sir, it is.

Q. Okay. So, you remember that?

A. Yes, sir.

Q. Also, inside the factual basis of Defendant’s Exhibit No. 1 was the
basis of why you accepted or you -- the plea deal, correct?

A. Yes, sir.

Q. And we heard your interview in reference to your -- I guess what
you believe happened that day, July 3rd of 2022. Is it still all true and
correct?

A. Yes, sir.

Q. Okay. And that the gun you had was JT’s (sic), Landry’s?

A. Yes, sir.

Q. During the fight?

A. Yes, sir.

Q. Okay. Now, you may not agree with what this jury has said, okay,
but that’s what we asked them to do, correct?

18
A. Yes, sir.

[…]

[THE STATE]: Okay. The federal charge that your attorney talked
about, that is for a separate charge other than this case, right? Yes or
no?

A. My federal charge?

Q. Yes, sir. That charge that -- in the federal court that says that you
were a prohibited person when you possessed that firearm during that
fight in the parking lot, that’s not the aggravated assault against Officer
Jennische or Officer Lamb, is it?

A. No, sir.

Q. Okay. So, if what your attorney’s indicating or hinting at is that you
have taken some type of a pop on the federal charge and somehow that
should be mitigating or this jury should take that into consideration,
they’re two separate things. Is that fair to say?

A. It happened the same day within the same timeframe. So, it is
relevant conduct, sir.

Q. All right. Fair enough. But two separate offenses?

A. Relevant conduct, sir.

Q. I’m not gonna argue with you. The last I’m gonna say on this then
move on.

A. Yes, sir.

Q. You were charged in federal court with possessing a gun during a
fight, and you’re charged in here state court with pointing a gun at these
two officers. Wouldn’t you agree with me?

A. It’s relevant conduct, sir.

19
[…]

[DEFENSE COUNSEL]: . . . Defense Exhibit No. 1, it was the same
case, wasn’t it?

A. Yes, sir.

Q. And there were the allegations of the police officers in this case –

[THE STATE]: Your Honor, I’m sorry. I’m –

Q. ([DEFENSE COUNSEL]) -- wasn’t there?

A. Yes, sir.

THE COURT: Hold on.

[THE STATE]: That’s a misrepresentation of the –

THE COURT: Let me see it.

[DEFENSE COUNSEL]: Your Honor, I –

THE COURT: Hold on. Let me read. I sustain the objection. That is a
misstatement of the facts in the case.

[DEFENSE COUNSEL]: Your Honor –

THE COURT: Hold on.

[DEFENSE COUNSEL]: I need to put something on the -- for the
record because I was the attorney of –

THE COURT: Let me finish what I’m going to say first.

[DEFENSE COUNSEL]: Okay.

THE COURT: This is evidence. It’s Defendant’s Exhibit No. 1. It’s
been admitted. The jury will be able to see it. But continuing to say that
this right here that I’m holding, Defendant’s Exhibit 1, has anything to
20
do with the offense that we’re here for today I think is a
misrepresentation, because this specifically only represents and has
discussion of the earlier day in the day. So, if you’ll put that back out
there, and you can put what you need on the record.

[DEFENSE COUNSEL]: Can I put it on now, Judge?

THE COURT: Yeah, or on a break, whichever.

[THE STATE]: Can we do a bill in front of the jury?

THE COURT: No. No.

[THE STATE]: We do that outside of the presence.

THE COURT: Yeah. Yeah. We will do it after. We will take a break
and you can -- keep in mind you can put a bill of review on as soon as
we take a break.

Q. (BY [DEFENSE COUNSEL]) This happened on the same day,
correct?

A. Yes, sir.

Q. That same firearm -- was that the same firearm that you placed on
the table up there?

A. Yes, sir.

Q. Okay. And that’s what you -- that’s what you testified to?

A. Yes, sir.

Q. So, when they alluded to you, you did not agree with the State’s
rendition that the two incidents were not related. You disagree with that,
right?

A. Yes, sir.

Q. They were related?
21
A. Yes, sir.

Q. Happened at the same time, same –

THE COURT: [Defense Counsel], I’m going to admonish you again –

[DEFENSE COUNSEL]: Yes, Your Honor.

THE COURT: -- and ask jury to disregard your last statement. You pass
the witness?

[DEFENSE COUNSEL]: I pass the witness.

[...]

Guillory then made the following bill of exception:

[DEFENSE COUNSEL]: Q. Mr. Guillory, you were -- when -- you
were indicted under the federal indictment, do you remember that?

A. Yes, sir.

Q. Enclosed in your discovery, was it also enclosed in reference to this
charge in reference to the State, which was the aggravated assault on a
public servant? Was that in your police reports in discovery?

A. Yes, sir. Exact same police reports. The exact same witness
statements.

Q. And I represented you and I still am. I do represent you in that federal
case, do I not?

A. Yes, sir.

Q. And as part of the negotiations, was it your understanding that these
-- both the aggravated assault and the possession of a firearm stem from
the same incident?

A. Yes, sir.
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Q. Okay. And that that’s what -- so, in your mind, it was all one?

A. Yes, sir.

Q. And through the discovery process or through negotiations, it was
determined that they were only gonna file charges against you for felon
in possession of a firearm?

A. Yes, sir.

Q. But when the State asked you whether or not they were two separate,
that wasn’t your recollection based on what you went through in the
federal, and it was a mischaracter (sic) of the evidence in which you
went through on the federal case compared to the State case?

A. Yes, sir.

[DEFENSE COUNSEL]: Pass the witness, Judge.

On appeal, Guillory complains, “The jury was not allowed to hear appellant’s

evidence that related to his admission to possession of a firearm earlier in the day in

question, but not to threaten the officer.” According to Guillory, the State’s

questioning confused him into conceding the federal charge for possession of a

firearm was separate from the state charge for aggravated assault on the two officers,

and the trial court’s rulings prevented him from explaining to the jury that he

considered the offenses to stem from what was “all one” incident in his mind.

We review a trial court’s exclusion of evidence for an abuse of discretion.

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g);

Bisby v. State, 907 S.W.2d 949, 952-53 (Tex. App.—Fort Worth 1995, pet. ref’d).

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An abuse of discretion occurs when the trial court acts arbitrarily, unreasonably, or

without reference to guiding rules or principles. Montgomery, 810 S.W.2d at 380. A

trial court’s ruling on the admission of evidence will be overturned only if the ruling

is so clearly wrong that it lies outside the zone of reasonable disagreement. See

Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008). If the trial court’s

evidentiary ruling is correct on any theory of law applicable to the case, that ruling

will not be disturbed even if the trial judge gave the wrong reason for the correct

ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

That said, “the exclusion of a defendant’s evidence will be constitutional error

only if the evidence forms such a vital portion of the case that exclusion effectively

preludes the defendant from presenting a defense.” Potier v. State, 68 S.W.3d 657,

665 (Tex. Crim. App. 2002). “A criminal conviction should not be overturned for

non-constitutional error if the appellate court, after examining the record as whole,

has fair assurance that the error did not influence the jury, or had but a slight effect.”

Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). See Tex. R. App. P.

44.2(b). We are to disregard erroneous exclusion of evidence if, after examining the

entire record, we have “fair assurance that the error did not influence the jury, or had

but a slight effect.” Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).

The record before us indicates other evidence was admitted regarding the fight

in the parking lot, Guillory’s holding Landry’s gun during the fight, and the federal

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charges, not only from Detective Wilson, but from video evidence, and Defense

Exhibit One. Guillory was allowed to testify about the incident during the

punishment phase of the trial. Guillory told the jury three times during cross-

examination that he considered it “relevant conduct” since “[i]t happened the same

day within the same timeframe.” And on re-direct, Guillory was allowed to reiterate

that he “disagree[d]” with the State’s assertion that the two cases were not related.

Defendant’s Exhibit 1 establishes the federal gun charge stemmed not from

Guillory’s possessing the gun while pointing it at the officers at the door of the

apartment, but from Guillory’s holding the gun during a fight in the parking lot

earlier the same day. Since the federal gun charge is not the same as the aggravated

assault charges for which Guillory was convicted, the trial court did not abuse its

discretion when it sustained the State’s objection to a leading question which asked

Guillory to testify that “Defendant’s Exhibit No. 1 . . . was the same case,” nor when

it instructed the jury to disregard Guillory’s affirmative answer. For the same reason,

and considering the question in context, we cannot say the trial court abused its

discretion when it subsequently admonished counsel and instructed the jury to

disregard Guillory’s affirmative response to a second leading question asking

whether the two cases were “related.” But to the extent the trial court may have erred,

we conclude any such error was harmless as the testimony would have been

cumulative of all the other evidence the jury had already heard on the same topic,

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including Guillory’s previous answers that he considered the cases to be relevant to

one another and that he disagreed with the State’s assertion they were unrelated. See

Robison v. State, 461 S.W.3d 194, 202 (Tex. App.—Houston [14th Dist.] 2015, pet.

ref’d) (exclusion of cumulative evidence is harmless); see also Valladarez-Martinez

v. State, No. 09-23-00049-CR, 2024 Tex. App. LEXIS 1649, at *10 (Tex. App.—

Beaumont Mar. 6, 2024, no pet. h.) (mem. op., not designated for publication).

After examining the entire record, we have fair assurance that any error in the

trial court’s evidentiary rulings or instructions, including its exclusion of the

evidence presented in Guillory’s bill of exception, did not influence the jury or had

but a slight effect, and was, therefore, harmless. Tex. R. App. P. 44.2(b). We overrule

Guillory’s third issue, and we affirm the trial court’s judgment.

AFFIRMED.

KENT CHAMBERS
Justice

Submitted on March 26, 2025
Opinion Delivered August 13, 2025
Do Not Publish

Before Golemon, C.J., Wright and Chambers, JJ.

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