Full Opinion

Opinion filed November 5, 2026 In The Eleventh Court of Appeals __________ No. 11-24-00295-CR __________ CHRISTIAN EMMANUEL HERNANDEZ, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 104th District Court Taylor County, Texas Trial Court Cause No. 24281-B MEMORANDUM OPINION The jury convicted Appellant, Christian Emmanuel Hernandez, of assault family violence enhanced with a previous conviction for the same offense, a third- degree felony, and assessed his punishment at confinement for eight years in the Institutional Division of the Texas Department of Criminal Justice and a fine of $5,000. See TEX. PENAL CODE ANN. § 22.01(b)(2)(A) (West 2026). Appellant challenges his conviction in four issues. We affirm. Background Facts Because Appellant does not challenge the sufficiency of the evidence, our discussion of the evidence is primarily limited to those facts relevant to this appeal. The State charged Appellant with committing assault family violence against A.S., the sixteen-year-old son of Appellant’s girlfriend with whom Appellant lived. The indictment alleged that Appellant intentionally, knowingly, and recklessly caused bodily injury to A.S., a member of Appellant’s family or household, by pushing him into a wall and head-butting him. The evidence offered at trial showed that the assault occurred over an argument about a vehicle wherein Appellant, who was twenty-eight years old and approximately one-hundred pounds heavier than A.S., slammed A.S. into a wall in A.S.’s bedroom and then headbutted him. Analysis In his first issue, Appellant contends that the trial court erred by denying his request to include the italicized words set out below at the end of the application paragraph of the court’s charge: If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, and 4 listed above, you must find the defendant “not guilty.” If you all agree the state has proved, beyond a reasonable doubt, each of the four elements listed above, you must find the defendant “guilty,” or if you have a reasonable doubt, thereof, you will acquit the defendant and say by your verdict “not guilty.” He contends that his requested instruction “was crucial to emphasize that if the jury had any reasonable doubt regarding the defendant’s guilt, they must acquit,” and that its omission resulted in “an incomplete and misleading jury charge.” The trial court is required to give the jury a written charge “setting forth the law applicable to the case.” TEX. CRIM. PROC. ANN. art. 36.14 (West 2007); Vega v. State, 394 S.W.3d 514, 518 (Tex. Crim. App. 2013). A review of alleged jury-charge 2 error involves a two-step analysis. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005); Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994). We must first determine whether the charge contained any actual error. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at 731–32. If there was actual error, we must next determine whether the error resulted in sufficient harm to require reversal. Ngo, 175 S.W.3d at 743–44; Abdnor, 871 S.W.2d at 731–32. If an appellant fails to object to or present a properly requested charge, any error in the charge “should be reviewed only for ‘egregious harm’ under Almanza.” Madden v. State, 242 S.W.3d 504, 513 (Tex. Crim. App. 2007); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). We first note that Appellant cites “Arroyo v. State, 9 S.W.3d 330, 336 (Tex. Crim. App. 1999) [sic]” for the proposition that he was entitled to his requested instruction. This is an incorrect citation because the case was not issued by the Court of Criminal Appeals but rather the Fourth Court of Appeals. The correct citation is Arroyo v. State, 9 S.W.3d 330 (Tex. App.—San Antonio 1999), vacated, 32 S.W.3d 868 (Tex. Crim. App. 2000) (per curiam). As indicated by the correct citation, the judgment of the Fourth Court of Appeals in Arroyo was vacated by the Court of Criminal Appeals. Arroyo was a case involving a required definition of “reasonable doubt” as contemplated by Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991), a case that was later overruled by Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000). 1 Arroyo, 32 S.W.3d at 868. Accordingly, Arroyo has no application to this appeal. “As the instrument by which a jury is empowered to conviction, jury charges are meant to inform the jury of how to apply the applicable law to the facts of the case.” Alkayyali v. State, 713 S.W.3d 780, 790 (Tex. Crim. App. 2025) (citing 1 We note that Appellant also favorably cites Geesa. He also favorably cites Reyes v. State, 938 S.W.2d 718, 721 (Tex. Crim. App. 1997), another case overruled by Paulson. 28 S.W.3d at 573. 3 Alcoser v. State, 663 S.W.3d 160, 164–65 (Tex. Crim. App. 2022)). “The charge ‘must contain an accurate statement of the law and must set out all the essential elements of the offense.’” Id. (quoting Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012)). Here, the charge given by the trial court accurately set out the law with respect to the jury’s duty to acquit Appellant if it found that the State did not prove beyond a reasonable doubt an element of the offense. The additional language requested by Appellant was virtually identical to the language that was in the immediately preceding sentence. “It has been held that when the refused charge is substantially the same or is adequately covered by the charge given, no harm is shown.” LeDuc v. State, 593 S.W.2d 678, 684 (Tex. Crim. App. [Panel Op.] 1979); Lopez v. State, 615 S.W.3d 238, 263 (Tex. App.—El Paso 2020, pet. ref’d); Borrego v. State, No. 11- 97-00080-CR, 1997 WL 33804169, at *1 (Tex. App.—Eastland Nov. 20, 1997, no pet.) (not designated for publication) (When a refused charge is substantially the same or is adequately covered by the charge given, there is no harm in failure to give the refused charge.). Accordingly, the trial court did not err by denying Appellant’s requested instruction and Appellant suffered no harm. We overrule Appellant’s first issue. In his second issue, Appellant contends that the trial court erred by failing to grant a mistrial for a purported violation of “the Rule.” Rule 614 of the Texas Rules of Evidence provides that at a party’s request, the trial court must order witnesses excluded from trial so they cannot hear the other testimony. TEX. R. EVID. 614. The purpose of “the Rule” is to “prevent the testimony of one witness from influencing the testimony of another . . . by one witness either overhearing the testimony of another witness or talking to that witness regarding his testimony.” Webb v. State, 766 S.W.2d 236, 239 (Tex. Crim. App. 1989) (citations and internal quotation marks omitted); see Russell v. State, 155 S.W.3d 176, 179 (Tex. Crim. App. 2005). 4 Chapter 36 of the Code of Criminal Procedure addresses “the Rule.” Russell, 155 S.W.3d at 179–80. Article 36.03(e) provides: At the commencement of a trial, the court shall admonish each witness who is to testify as to those persons whom the court determines the witness may talk to about the case before the trial ends and those persons whom the witness may not talk to about the case. The court may punish as contempt a witness who violates the admonishment provided by the court. TEX. CODE CRIM. PROC. ANN. art. 36.03(e) (West Supp. 2026). Article 36.05 states: Witnesses under rule shall be attended by an officer, and all their reasonable wants provided for, unless the court, in its discretion, directs that they be allowed to go at large; but in no case where the witnesses are under rule shall they be allowed to hear any testimony in the case. Id. art. 36.05. Finally, Article 36.06 provides: Witnesses, when placed under rule, shall be instructed by the court that they are not to converse with each other or with any other person about the case, except by permission of the court, and that they are not to read any report of or comment upon the testimony in the case while under rule. The officer who attends the witnesses shall report to the court at once any violation of its instructions, and the party violating the same shall be punished for contempt of court. Id. art. 36.06. “Upon invocation of the Rule, a witness should not listen to testimony in the case or talk about the case to others absent permission of the trial court.” Qualls v. State, 547 S.W.3d 663, 677 (Tex. App.—Fort Worth 2018, pet. ref’d) (citing CRIM. PROC. arts. 36.03(e), 36.05, 36.06). “Even a witness not yet sworn or admonished about the Rule violates it by doing so.” Id. (colleting cases). A trial court’s rulings concerning a violation of the Rule are reviewed for an abuse of discretion. See Bell v. State, 938 S.W.2d 35, 50 (Tex. Crim. App.1996). We also review a trial court’s denial of a motion for a mistrial for an abuse of discretion. Becerra v. State, 5 685 S.W.3d 120, 127 (Tex. Crim. App. 2024) (citing Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004)). Appellant’s second issue concerns an alleged violation of Article 36.06. At the beginning of the second day of trial, Appellant’s trial counsel alleged that one of Appellant’s witnesses had observed State’s witnesses on the previous day discussing the case in the hallway outside of the courtroom. In support, Appellant presented the testimony of Summer Rivera regarding a conversation that she purportedly overheard between “a bigger gentleman, a lady in a butterfly shirt, a lady with purple hair, a lady with a long ponytail, and a [boy].” Rivera testified that the group “started talking about how they needed to watch what they say, and how if anything they say -- they didn’t want the whole truth to come out because it could blow this whole thing south,” stated, “Don’t say anything like I would and think before you speak,” and said, “One way or another, he’s getting 30 years.” Rivera further testified that she was communicating with a friend by text message and that she typed the things that she overheard and told her friend about it via text. On cross-examination, Rivera agreed that “no facts of the case were discussed” in the conversation that she overheard. The trial court also received testimony from April Polk, Appellant’s mother, about the alleged violation of the Rule. She was called as a witness by the State on the previous day. Polk testified that she was the person wearing a butterfly shirt on the previous day to which Rivera referred. Polk stated that she tried to comfort A.S.’s mom in the hallway by telling her that “she needed to be strong, she needed to be at peace, and that she needed to take time with her answers instead of just saying whatever just popped up, so that way the truth would come out.” Polk testified that she and the other witnesses did not talk about the facts of the case. At the conclusion of the hearing on Appellant’s motion, the trial court announced: 6 Well, I have observed the demeanor of the witnesses in this hearing. [Polk], she denied making the statement. I find that denial to be credible based on my observations of her in the courtroom. So I don’t see anything here that would call for a mistrial. The motion for mistrial is denied. Accordingly, the trial court determined that no violation of the Rule had occurred. We afford almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). Because the question of whether a violation of Article 36.06 occurred was inherently a credibility determination, we defer to the trial court’s finding that no violation occurred. See id. Thus, the trial court did not abuse its discretion by denying Appellant’s motion for mistrial based upon an alleged violation of the Rule. We overrule Appellant’s second issue. In his third issue, Appellant contends that the trial court erred by admitting a letter that he wrote to his former girlfriend, A.S.’s mother, while in jail awaiting trial. He contends that the letter contained prejudicial information about his past incarceration that outweighed its probative value in violation of Rule 403 of the Texas Rules of Evidence. TEX. R. EVID. 403. Prior to the testimony of A.S.’s mother, Jean Collins, the State advised the trial court that it sought to offer a letter written by Appellant in September 2023. The State asserted that the letter contained admissions from Appellant about the incident with A.S. However, the letter also made references to Appellant previously being in prison and currently being in jail. In discussing whether to admit the letter, the trial court stated its belief that “[a]s far as the 403 objection, the mention that the defendant had been to prison, that would need to be redacted.” However, Appellant’s trial counsel declined the trial court’s offer to redact the portions about prior incarceration by stating: 7 [COUNSEL]: [I]f all that other stuff is coming in there, I think, to lend the context to it, we should allow in the mention of prison. THE COURT: Okay. So you don’t want it redacted at all based on my other ruling? [COUNSEL]: Based on your other ruling, I mean, if you’re not going to redact it in total, other than just the admission, then I think the -- I think the prison portion of it actually does not prejudice the defendant as much, so I would -- I would want to leave that in there if you’re going to leave everything else in there. THE COURT: Okay. So, in light of that, then the letter will be not -- I won’t require that it be redacted. The trial court subsequently admitted the letter into evidence in its entirety. In the letter, Appellant made the following statements: “I did it to myself”; “It was all my fault. I could have been in bed with you that night and more if I never hurt my boy”; “I can’t forgive myself”; “I was blinded by anger”; and “I want my boy to send me to prison because I hurt him.” Appellant also stated in the letter that he was currently in jail and made references to previously being in prison. Under Rule 403, relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay or needless presentation of cumulative evidence. TEX. R. EVID. 403; see Young v. State, 283 S.W.3d 854, 874 (Tex. Crim. App. 2009). “Rule 403 favors admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial.” Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002); Render v. State, 347 S.W.3d 905, 921 (Tex. App.—Eastland 2011, pet. ref’d). Evidence is unfairly prejudicial when it has the undue tendency to suggest an improper basis for reaching a decision. Reese v. State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000); Render, 347 S.W.3d at 921. 8 We review a trial court’s ruling under Rule 403 for an abuse of discretion. Pawlak v. State, 420 S.W.3d 807, 810 (Tex. Crim. App. 2013). This standard requires an appellate court to uphold a trial court’s evidentiary ruling when it is within the zone of reasonable disagreement. Torres v. State, 71 S.W.3d 758, 760 (Tex. Crim. App. 2002); Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). We will uphold the trial court’s ruling on the admission or exclusion of evidence if the ruling was proper under any legal theory or basis applicable to the case. See Martinez v. State, 91 S.W.3d 331, 336 (Tex. Crim. App. 2002). In reviewing a trial court’s determination under Rule 403, a reviewing court is to reverse the trial court’s judgment “rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery v. State, 810 S.W.2d 372, 392 (Tex. Crim. App. 1991)). The prejudice that Appellant asserts on appeal is the letter’s reference to his previous incarceration. The trial court offered to redact those references from the letter, but Appellant declined those redactions. The Court of Criminal Appeals addressed a similar situation in Woodall v. State wherein the defendant declined the trial court’s offer to secure a witness’s appearance at trial. 336 S.W.3d 634, 644–46 (Tex. Crim. App. 2011). The defendant in Woodall asserted on appeal a violation of the Confrontation Clause based upon the witness’s absence. Id. The Court of Criminal Appeals held that the defendant was estopped from making the claim because she induced the alleged error by declining the trial court’s invitation to bring the witness to court. Id. at 646. Under the invited error doctrine, “a party cannot take advantage of an error that it invited or caused, even if such error is fundamental.” Id. at 644 (citing Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999)). “[A] party is estopped from seeking appellate relief based on error that it induced. ‘To hold otherwise would be to permit him to take advantage of his own wrong.’” Id. (quoting Prystash, 3 S.W.3d at 531). 9 As was the case in Woodall, here the trial court offered to redact the references to Appellant’s incarceration, but Appellant declined this offer. Thus, the prejudice under Rule 403 that Appellant complains about on appeal was invited by his own conduct and he is thereby estopped from asserting it. See id. at 644–46. Moreover, the trial court did not abuse its discretion in overruling Appellant’s Rule 403 objection. When conducting a Rule 403 analysis, the trial court must balance: (1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest [a] decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). Rule 403, however, does not require that the balancing test be performed on the record. Greene v. State, 287 S.W.3d 277, 284 (Tex. App.—Eastland 2009, pet. ref’d). In overruling a Rule 403 objection, the trial court is assumed to have applied a Rule 403 balancing test and determined that the evidence was admissible. Id. The first Gigliobianco factor focuses on the inherent probative force of the proffered evidence. As the Court of Criminal Appeals explained in Gigliobianco, “probative value” is more than just relevance. 210 S.W.3d at 641. It refers to how strongly an item of evidence “serves to make more or less probable the existence of a fact of consequence to the litigation[,] coupled with the proponent’s need for that item of evidence.” Id. The letter’s admissions of fault and guilt that we referenced above were probative to rebut Appellant’s suggestions at trial that he was acting in self-defense. Further, the letter was Appellant’s own words about the alleged 10 assault. With respect to the State’s need for the evidence under the second Gigliobianco factor, we have already noted how the proffered evidence served to rebut Appellant’s suggestion of self-defense. The remaining Gigliobianco factors focus on the potential negative effects of the proffered evidence. The third factor focuses on the tendency of the evidence to suggest a decision on an improper basis. While the proffered evidence was prejudicial, it was not so extreme as to cause the jury to render a decision on an improper basis. The letter referred to the conduct that led to the charged offense. And while the letter also referenced Appellant’s incarceration, Appellant declined to accept the trial court’s offer to redact those references. The fourth factor focuses on the potential of the proffered evidence to confuse or distract the jury from the main issues. The fifth factor focuses on the potential of the proffered evidence to mislead the jury. The fourth and fifth factors weigh in favor of admission because the proffered evidence was probative of Appellant’s perspective of the altercation. Finally, the sixth factor focuses on the time needed to present the proffered evidence and whether it is cumulative of other evidence. The evidence concerning Appellant’s letter only spanned a few pages of the reporter’s record and it was not cumulative of other evidence. Rule 403 contemplates excluding evidence only when there is a “clear disparity” between the offered evidence’s prejudice and its probative value. Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). Considering the standard of review, the presumption favoring admissibility of relevant evidence, and the Gigliobianco factors, we cannot conclude that the trial court abused its discretion in overruling Appellant’s Rule 403 objection. See id. at 568 (“Because Rule 403 permits the exclusion of admittedly probative evidence, it is a remedy that should be used sparingly.”). We overrule Appellant’s third issue. 11 In his fourth issue, Appellant asserts that the trial court erred by excluding body camera footage that “contained crucial evidence” for him. During the testimony of Officer Logan Bangert of the Abilene Police Department, Appellant sought to offer the forty-minute body camera footage of the police officers’ interaction with Appellant on the night of the incident. The State objected to the admission of the recording on the basis that it contained Appellant’s hearsay statements. The trial court sustained the State’s hearsay objection. Appellant asserted both at trial and now on appeal that the recording was admissible under the hearsay exception for present sense impression. See TEX. R. EVID. 803(1). Hearsay is a statement, other than one made by the declarant while testifying at trial, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d). A statement is a present sense impression and falls under the exception to the rule against hearsay if it “describ[es] or explain[s] an event or condition, made while or immediately after the declarant perceived it.” TEX. R. EVID. 803(1) (emphasis added). The rationale for this exception stems from the statement’s contemporaneity, not its spontaneity. Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App. 1992). If the declarant had time to reflect upon the event or the conditions he observed, the event or conditions are not contemporaneous. Fischer v. State, 252 S.W.3d 375, 379–80 (Tex. Crim. App. 2008) (describing a present sense impression as an “unreflective statement”). Rule 103(a)(2) provides that if a ruling excludes evidence, in order to preserve error, a party must inform the trial court of the evidence’s substance by an offer of proof. TEX. R. EVID. 103(a)(2); see Mays v. State, 285 S.W.3d 884, 889 (Tex. Crim. App. 2009). “The primary purpose of an offer of proof is to enable an appellate court to determine whether the exclusion was erroneous and harmful.” Mays, 285 S.W.3d at 890 (quoting Steven Goode et al., 1 Texas Practice–Guide to the Texas Rules of Evidence: Civil and Criminal § 103.3 (1993)). 12 Here, Appellant sought to have admitted a forty-minute recording of his interaction with the police. His trial attorney told the trial court that the recording had Appellant’s interactions with the police at the scene including “some discussion of whether or not there was a weapon in the room,” and “to show the present sense impression from the defendant, how he explained events to the officers and how he perceived the events at the time.” However, Appellant never offered the recording as an offer of proof. The Court of Criminal Appeals has explained that in order to fall under the present-sense-impression exception, the statement must have been made “without any reflection, thought process, or motive to fabricate or exaggerate.” Fischer, 252 S.W.3d at 379. In the absence of the recording in the appellate record, we are unable to determine if the trial court erred in determining whether it constituted a present sense impression or the possible harm from its exclusion. Thus, Appellant has not preserved his complaint about the exclusion of the recording for appellate review. See TEX. R. EVID. 103(a). Moreover, Appellant adduced his version of the altercation through his cross- examination of Abilene Police Officer Samuel Cope. Officer Cope testified that Appellant brought the presence of knives in A.S.’s room to his attention and that Appellant wanted to keep A.S. away from the knives during the altercation. Officer Cope also testified how Appellant “may have been feeling at that time;” “[t]hat he was being disrespected by [A.S.],” and that he was “worried about the knives.” This evidence would appear to be the same type of information contained within the recording thereby reducing the harm, if any, from the recording’s exclusion, and if the excluded body camera footage contained other points of Appellant’s version of the altercation, Officer Cope was available for further cross examination. We overrule Appellant’s fourth issue. 13 This Court’s Ruling We affirm the judgment of the trial court. JOHN M. BAILEY CHIEF JUSTICE November 5, 2026 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Bailey, C.J., Trotter, J., and Williams, J. 14