author: PATRICK A. PIRTLE, Justice. BRIAN QUINN, Chief Justice,

text:
    Phillip Doyle CHANEY, Appellant, v. The STATE of Texas, Appellee.
    No. 07-08-0476-CR.
    Court of Appeals of Texas, Amarillo, Panel D.
    May 27, 2010.

      David M. Crook, Crook & Jordan, Lubbock, for Appellant.
    David W. Hajek, District Attorney, for Appellee.
    Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
   OPINION

PATRICK A. PIRTLE, Justice.

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil.
Justice Robert H. Jackson, United States Supreme Court

Appellant, Phillip Doyle Chaney, was convicted by a jury of murder -with an affirmative finding on use of a deadly weapon, to-wit: a firearm. Punishment was assessed at twenty-three years confinement. By his original brief, Appellant presented four points of error alleging error by the trial court (1) during jury selection by making remarks to the panel reasonably calculated to benefit the State or prejudice him by denying him his rights under article 35.15 of the Texas Code of Criminal Procedure; (2) by overruling his objection to testimony by State’s witness, Ranger Jay Foster, regarding his intent to kill, thereby affecting his substantial rights; (3) in letting the jury’s verdict of murder stand and violating his rights in so doing because the evidence of his intentional or knowing commission of murder is legally insufficient and (4) factually insufficient.

Following submission of this appeal, this Court directed the parties to brief unassigned error regarding the possibility of charge error in the definition of “intentional” as it relates to the result oriented offense of murder. As a result of this Court’s directive, Appellant raised two additional points of error, to-wit: (5) the trial court committed fundamental error that egregiously harmed him by erroneously defining the culpable mental states of “intentional” and “knowing” in the abstract portion of the guilt-innocence charge; and (6) the trial court violated his due process rights by allowing inadmissible testimony and argument focusing on the intentional or knowing nature of his conduct as opposed to the result of his conduct.

As to the first four points, the State contends the trial court did not err in its remarks, Appellant did not preserve an objection as to Ranger Foster’s testimony, and the evidence was both legally and factually sufficient. As to the last two points, while the State candidly concedes that the trial court erred by including the full statutory definition of “knowingly” found in section 6.03(b) of the Texas Penal Code in the abstract portion of the charge, it contends that Appellant did not suffer egregious harm because the application paragraph of the court’s charge correctly instructed the jury on the appropriate mens rea. The State further contends that Appellant’s allegations of cumulative errors were unobjected to and thus not preserved for review. Finally, the State contends Appellant’s due process rights were not violated.

For the reasons to follow, we reverse the judgment of the trial court and remand this matter for further proceedings consistent with this opinion.

Factual Background

In February 2005, when Appellant was eighteen years old, he began working as a correctional officer for the Institutional Division of the Texas Department of Criminal Justice at the T.L. Roach Unit in Chil-dress, Texas. Appellant lived in Paducah with his younger brother, Bo, and their mother. Two years later, on the afternoon of March 5, 2007, fifteen year old Lukas Taylor, the victim, and Christopher Dominguez, Jr. skipped baseball practice, bought two marihuana joints, and drove to the Chaney home to spend time with their friend Bo. Another friend, Presciliano Perez, arrived later.

While Appellant was playing a video game, Lukas, who was sitting in a nearby rocker recliner, opened Appellant’s gun case, removed a .44 magnum handgun, unloaded it, spun the cylinder, and admired it. Appellant repeatedly asked him to reload the firearm and put it up. Eventually Lukas reloaded the firearm, but before he was able to put it up, Appellant approached him, they struggled, and the firearm discharged, shooting Lukas in the chest.

According to the eyewitnesses, Appellant was not angry and he and Lukas did not argue or fight. Christopher testified that when Appellant was asking Lukas to put the gun up, they were “joking around, mouthing off.” During direct examination, Christopher was asked whether Appellant or Lukas were “mad,” to which he answered “[n]o.”

Appellant’s brother, Bo, testified that when the struggle for the gun began, the barrel of the gun was pointed toward a wall then speculated that the gun got turned around during the struggle. None of the eyewitnesses saw whose finger was on the trigger and forensics was unable to establish that fact.

After the shooting, Bo called 911 and began CPR on Lukas, while Appellant went outside. The 911 call was made at 6:34 p.m. Law enforcement and emergency personnel responded. Lukas was transported by ambulance to a hospital in Chil-dress, where he later died.

At approximately 7:01 p.m., Texas Department of Public Safety Trooper Keith Bowles contacted Texas Ranger Jay Foster about the incident. Foster instructed Bowles to secure the scene and the witnesses. Foster then contacted the Padu-cah Chief of Police and advised him to inform Appellant that he was not under arrest. Appellant was taken to the police department where he voluntarily gave a statement. At that time he was unaware that Lukas had died.

After Ranger Foster processed the scene, he went to the police department and met with Appellant. Foster then began a month-long investigation which included attending the autopsy, interviewing witnesses, emergency medical responders, and emergency room personnel. Eventually, he obtained an arrest warrant for Appellant for the offense of manslaughter.

Upon further investigation and interviews with Appellant’s supervisor at the Roach Unit and Sergeant Shannon Betts, the firearms instructor for correctional officers, Ranger Foster became convinced that Appellant’s conduct constituted murder rather than manslaughter. Based upon Appellant’s firearms training and experience, and based upon Ranger Foster’s understanding of the law as it pertained to the culpable mental states of knowingly and recklessly, he concluded that Appellant should be held to the higher standard of knowingly because he was not an “ordinary person.” Accordingly, he presented the case to the grand jury as a murder, and they returned the instant indictment.

After a lengthy and difficult voir dire, Appellant was tried and convicted of murder. The jury assessed his sentence at twenty-three years confinement and this appeal followed.

Of Appellant’s six points of error, we will address two. Because Appellant’s third point, legal sufficiency, would provide him the greatest relief, i.e., an acquittal, we will address that contention first. Finding the evidence legally sufficient, we will next address his fifth point, charge error. Because disposition of that point addresses every issue necessary to a final disposition of the appeal, we pretermit Appellant’s remaining points of error.

I. Legal Sufficiency

A. Standard of Review

It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const, amend. XIV; Tex.Code Crim. Proc. Ann. art. 38.03 (Vernon Supp.2009); Tex. Penal Code Ann. § 2.01 (Vernon 2003). Evidence is legally insufficient if, when viewed in a light most favorable to the prosecution, a rational trier of fact could not have found each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). In conducting a legal sufficiency review, we must evaluate all of the evidence in the record, both direct and circumstantial, whether admissible or inadmissible. Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999), cert. denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S.Ct. 2781. In measuring the sufficiency of the evidence to sustain a conviction, we measure the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not necessarily restrict the States theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. For purposes of legal sufficiency, the quantum of proof necessary to support a conviction is a minimum threshold.

Appellate courts are ill-equipped to weigh the evidence; unlike the factfin-der — who can observe facial expressions and hear voice inflections first-hand — an appellate court is limited to the cold record. Laster, 275 S.W.3d at 517. Our role on appeal is restricted to guarding against the rare occurrence when a factfinder does not act rationally. Id. After giving proper deference to the factfinders role, we will uphold the verdict unless a rational factfin-der must have had reasonable doubt as to any essential element. Id. at 518.

B. Analysis

To support a conviction for murder, the State was required to prove that Appellant intentionally or knowingly caused the victim’s death by shooting him with a deadly weapon, to-wit: a firearm. See Tex. Penal Code Ann. § 19.02(b)(1) (Vernon 2003) and § 1.07(a)(17)(A) (Vernon Supp.2009).

Section 6.03 of the Penal Code defines the culpable mental states of intentionally and knowingly as follows:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.

Murder, whether intentionally or knowingly committed, is a result oriented offense. Cook v. State, 884 S.W.2d 485, 490 (Tex.Crim.App.1994). As such, the full statutory definitions of intentional and knowing do not apply. Instead, the State must establish that the accused intended the result, i.e., death, or that he was aware that his conduct was reasonably certain to cause that result. Id.

A firearm is a deadly weapon per se. See Tex. Penal Code Ann. § 1.07(a)(17)(A). See also Ex Parte Huskins, 176 S.W.3d 818, 820 (Tex.Crim.App.2005).

According to the evidence presented, Appellant and the victim struggled over a loaded .44 magnum handgun which discharged, shooting the victim in the chest, resulting in his death. Although none of the eyewitnesses could state what caused the handgun to discharge, Ranger Foster opined that Appellant had pulled the trigger during that struggle and that the victim could not have pulled the trigger. Although he unequivocally testified that the shooting was not intentional, in his opinion, Appellant knowingly committed murder. According to Ranger Foster’s testimony, no matter how accidental a shooting incident might have been, anyone trained in firearms would not be an “ordinary person” and would, therefore, be incapable of manslaughter or criminally negligent homicide because they would always be aware that careless conduct involving a firearm was reasonably certain to cause death. Although Ranger Foster’s testimony was, in part, based upon an incorrect legal premise, his testimony did include statements which were legally sufficient to support the jury’s decision to convict Appellant of murder. The legal sufficiency of the evidence was further supported by Christopher’s testimony that Appellant “caused” the victim’s death and Prescili-ano’s testimony that Appellant “caused” the shooting. Accordingly, point of error three is overruled.

II. The Court’s Charge

As stated above, murder, whether intentionally or knowingly committed, is a result oriented offense. Cook, 884 S.W.2d at 490. Because the applicable mental state relates to the result of the conduct only, i.e., causing of the death, Schroeder v. State, 123 S.W.3d 398, 400 (Tex.Crim.App.2003), a charge which contains the full statutory definition is erroneous. See Cook, 884 S.W.2d at 491. See also Alvarado v. State, 704 S.W.2d 36, 40 (Tex.Crim.App.1985). The court’s charge for a result oriented offense such as murder should not allow a jury to convict a person based solely on a finding that the accused intentionally or knowingly engaged in conduct which happened to cause death. See generally Green v. State, 891 S.W.2d 289, 294 (Tex.App.-Houston [1st Dist.] 1994, pet. ref'd).

Here, the abstract portion of the court’s charge contained the full statutory definitions of intentional and knowing as they appear in section 6.03(a) and (b) of the Texas Penal Code. Accordingly, the charge allowed the jury to do that which the law did not — find him guilty of murder based on his conduct, rather than on intending or knowing the prohibited result — death. As such, the trial court erred in the submission of its charge to the jury. Cook, 884 S.W.2d at 491. However, merely finding error in the court’s charge begins, rather than ends, our inquiry. Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App.1984) (op. on reh’g). If error exists, we must then analyze the error for harm. Ngo v. State, 175 S.W.3d 738, 743 (Tex.Crim.App.2005).

A. Standard of Review

Appellant did not object to the trial court’s charge error. This failure to preserve jury charge error is not, however, an absolute bar to appellate review. Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App.2008). Rather, failure to preserve error establishes the degree of harm necessary for reversal. Id. Unobjected to charge error is reversible if it is so egregious and creates such harm that it deprives the accused of a “fair and impartial trial.” Almanza, 686 S.W.2d at 172. Errors that results in egregious harm are those kinds of errors that affect “ ‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’ ” See Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996) (quoting Almanza, 686 S.W.2d at 172). See also Sanchez v. State, 209 S.W.3d 117, 121 (Tex.Crim.App.2006).

When reviewing harm resulting from charge error, an appellate court must determine harm in light of (1) the entire jury charge, (2) the state of the evidence, including contested issues and the weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. See Almanza, 686 S.W.2d at 171. See also Ngo, 175 S.W.3d at 750 n. 48. Additionally, there is no burden of proof or persuasion in a harm analysis conducted under Almanza. Warner, 245 S.W.3d at 464.

B. Harm Analysis

1. The Entire Jury Charge

While the abstract definitions of intentional and knowing contained in the court’s charge erroneously included references to the nature of Appellant’s conduct, the application paragraph of the court’s charge correctly limited the jury’s consideration to the result of his conduct. Accordingly, the State relies heavily on Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App.1999), and Richie v. State, 149 S.W.3d 856, 857 (Tex.App.-Amarillo 2004, no pet.), for the proposition that harm can never be egregious when it is shown that an appellant fails to make an objection at trial and the charge correctly instructs the jury in the application paragraph.

Despite its earlier holding in Medina, in 2006 the Court of Criminal Appeals, in granting an appellant’s petition for discretionary review in a per curiam, unpublished opinion, held that an appellate court improperly limits its harm analysis when it does so without addressing the other Almanza factors. See Dougherty v. State, No. PD-1411-05, 2006 WL 475802 (Tex.Crim.App. March 1, 2006) (per curiam) (not designated for publication). In Dougherty, the appellate court’s decision that error in the abstract portion of a jury charge did not cause egregious harm when the application paragraph properly instructed the jury was vacated and remanded for consideration of the remaining Al- manza factors. Although the appellate court had correctly set forth the standard for assessing harm, the high Court determined that a harm analysis based on charge error could not be based solely on the jury charge but must instead include consideration of all four Almanza factors. Id. But see Dougherty v. State, 188 S.W.3d 670 (Tex.Crim.App.2006) (Keller, P.J. dissenting) (concluding that appellant’s petition should have been refused because an erroneous abstract paragraph is completely remedied by a properly limited application paragraph without the necessity of considering all four Almanza factors).

In Richie, 149 S.W.3d at 857, this Court followed Medina and, without analyzing all four factors, found that Richie had not suffered egregious harm where the application paragraph properly instructed the jury on the correct culpable mental state. Richie, however, predates Dougherty, and in light thereof, we deem it appropriate to consider all of the Almanza factors in determining harm.

In that vein, we note that the Charge of the Court was a multifarious charge including the lesser included offenses of manslaughter and criminally negligent homicide. Again, the abstract definition of the appropriate culpable mental states included the full statutory definitions of reckless and criminal negligence. While the distinction between “nature of conduct” and “result of conduct” becomes blurred with respect to offenses based upon a reckless or criminally negligent mens rea, the inclusion of the full statutory definition of all four mental states, combined with the State’s argument that Appellant was not an “ordinary man,” certainly compounded the error.

Furthermore, even though the State’s witnesses had testified that Appellant did not intentionally cause the victim’s death, and the State acknowledged in its closing arguments that it was only relying upon knowing for a murder conviction, the charge of the court still allowed jurors to consider whether or not Appellant committed murder by intentionally engaging in conduct. Therefore, overall, a review of the entire jury charge militates in favor of a finding of harm.

2. The State of the Evidence

From the beginning, as it pertained to Appellant’s culpable mental state, the State’s evidence focused on the nature of his conduct. According to the State, because of his extensive firearms training, Appellant could not have been guilty of the lesser offenses of manslaughter or criminally negligent homicide because those offenses required a culpable mental state which, according to the State’s theory, only applied to an “ordinary person.” In reaching this conclusion, the State relies heavily on the testimony of Ranger Foster.

Of that evidence which Appellant contested, and upon which the jury would be asked to make determinations of probative value, the vast majority dealt with Appellant’s culpable mental state. The State spent a great deal of time establishing that, due to his firearms training, Appellant was not an ordinary person, and that he must have fully understood that wrestling over a loaded firearm was an extremely dangerous proposition.

Sergeant Shannon Betts, who trained Appellant on use of firearms, testified that Appellant had more firearms training than the ordinary citizen. In response to numerous questions during direct examination, Ranger Foster emphatically testified that Appellant was not an ordinary person because of his extensive firearms training. He further opined that the culpable mental states of recklessness and criminal negligence simply did not apply to Appellant for that reason.

During Ranger Foster’s direct testimony, the prosecutor recited the full statutory definition of “knowingly” and asked the following question:

[Prosecutor]: So tell us your feelings about how those facts apply.
[Ranger Foster]: Based on—
[Defense Counsel]: Objection, Your Honor, invades the province of the jury. They’re the ones that — they are the ones that determine whether it was intentional, knowing, reckless, or criminally negligent.
[Prosecutor]: Judge, if I may respond.
[Court]: Yes.
[Prosecutor]: The Ranger is testifying about why he charged this defendant with manslaughter and later changed his mind as to what the offense was. He’s entitled to say why he changed his mind and what the offense is and why he charged him in that regard.
[Court]: Your objection is overruled. Go ahead, Ranger.

Later in his testimony, again over objection, Ranger Foster explained why he increased the charge from manslaughter to murder:

[t]he part, as we said, that went from manslaughter to murder was his background, his training as a correctional officer. He is held to a higher degree of accountability, just such as myself would be in a similar situation, and he is not an ordinary person.

During cross-examination, Ranger Foster clung to his opinion that a person who is trained to carry a weapon for employment purposes is not an ordinary person for purposes of culpable mental states. He qualified his testimony to prevent “blanket coverage” by testifying that whether a person should be held to a higher standard “depend[s] on the amount of training and the situation around it.”

Appellant’s brother, Bo, testified that Appellant was not “mad” and there was no arguing or fighting between Appellant and Lukas. Although Christopher answered affirmatively during direct examination when asked if Appellant “caused” the victim’s death, he also testified that Appellant was not mad and that Appellant and Lukas were “joking around.” Presciliano testified during cross-examination that Appellant did not knowingly shoot Lukas and agreed with defense counsel that the discharge of the firearm was an unintentional act.

Lukas Taylor was shot during a struggle for control of the firearm and other than Ranger Foster’s opinion testimony that Appellant committed murder, the State did not present evidence that it was Appellant’s purpose that Lukas would die as a result of their confrontation. Accordingly, we conclude the evidence tending to support a finding that Appellant caused the victim’s death, a required element of the offense, is “weak” and, considering conflicting evidence, is arguably “against the great weight and preponderance of the evidence.” Laster, 275 S.W.3d at 518. Consequently, we find the second Almanza factor also favors a finding of harm.

3. The Arguments of Counsel

In his opening argument, the prosecutor stated:

[Appellant] loved guns. He owned numerous firearms, including shotguns, pistols, and assault rifles. He had worked for about two years as a prison guard over at the Roach Unit in Chil-dress. As a requirement for his employment, he was trained in firearm proficiency. As a requirement of his employment, he learned how to use firearms with an emphasis on safety. He was certified by the State of Texas as a corrections officer. So [Appellant] knew how to safely handle guns.
But in spite of his training, [Appellant] almost always kept his guns loaded and had a habit of pointing them at people....
[Appellant’s] conduct caused the death of Lukas Taylor.
[B]ut for the act and the conduct of [Appellant], the shooting would not have occurred.

The prosecutor then read the full statutory definitions of “intentionally” and “knowingly” to the jury and continued:

[CJonduct is the core part of those definitions .... It’s the act and the conduct of [Appellant], [Appellant] alone, and that will prove the offense of murder.

(Emphasis added). The prosecutor’s opening argument contains misstatements of law. Murder is not proven by knowing conduct; rather, section 19.02(b)(1) of the Texas Penal Code criminalizes causing death.

During his closing argument, the prosecutor explained to the jury it was relying solely on the culpable mental state of “knowingly” to establish murder. Although he did reiterate the incorrect full statutory definition of knowingly, his factual application only emphasized the correct definition. However, after explaining knowingly, he continued his argument by incorrectly contending that the culpable mental states of reckless and criminal negligence applied only to an ordinary person. Then, by arguing that Appellant was not an ordinary person, he reasoned that the offenses of manslaughter and criminally negligent homicide did not apply to Appellant. This argument was not only misleading, it was a misstatement of the law.

After the defense presented its closing argument, the prosecutor gave its final argument. In summarizing responses to his questions by Bo, Christopher, and Presciliano, he argued, “the acts and conduct of [Appellant] ... but for the acts and the conduct of this man, [Appellant], Lu-kas Taylor would still be alive and there would never have been a shooting.” He then reminded the jury of Sergeant Betts’s testimony that Appellant is not an ordinary person because of his firearms training. Finally, in recalling Ranger Foster’s testimony, the prosecutor reiterated Foster’s opinion that Appellant was guilty of murder because he was not an ordinary person.

The prosecutor continued during his closing argument:

[Prosecutor]: And I think he [Ranger Foster] did a good job and I don’t want to belabor the jury, because we’ve already talked about it, explaining to you why his investigation revealed the crime of murder, in his opinion, and not a manslaughter or criminal negligence. And it all goes back — a lot of it goes back to the fact that [Appellant] is just not an ordinary person. He is a person that is trained in firearms safety and firearms and knows a lot more than an ordinary person. He doesn’t fit the definition for manslaughter or criminal negligence.

(Emphasis added).

In analyzing the third Almanza factor, the State asserts its arguments were proper and that Appellant did not object to the definition of “knowingly” during closing arguments. We disagree. Just as with the prosecutor’s opening argument, his closing and final arguments also contain misleading contentions and misstatements of law. He emphasized that but for Appellant’s conduct, the victim would still be alive and he argued that the offenses of manslaughter and criminally negligent homicide were simply inapplicable to Appellant because he was not an ordinary man.

Concluding that certain misstatements of law were made by the prosecutor during opening and closing arguments which likely would have mislead and confused the jury, we disagree with the State’s assessment of the third Almanza factor and conclude that the improper arguments egregiously prejudiced Appellant.

4. Any Other Relevant Information

Finally, in assessing the fourth and final Almanza factor, any other relevant information, the State insists the jury needed to understand the emphasis the State placed on Appellant’s conduct. The State asserts, “the jury needed to understand the circumstances of the shooting and the training of the appellant in order to understand that the appellant knew that Lukas Taylor would die as a result of the appellant’s actions.”

In response to the prosecutor’s closing arguments, defense counsel argued that the State’s theory was that persons with firearms training are so extraordinary that any unintentional discharge of a firearm causing death would constitute murder. Taken to its logical conclusion, under the State’s theory, an off-duty police officer, due to his firearms training, would always be held to a higher standard than the “ordinary person” and could not be found guilty of any offense less than murder, even if his conduct was merely reckless or criminally negligent.

A statute is interpreted in accordance with the plain meaning of its text, unless the plain meaning leads to an absurd result that the Legislature could not possibly have intended. See Murray v. State, 302 S.W.3d 874, 877 (Tex.Crim.App.2009). The prosecution’s theory leads to an absurd result. Neither the Texas Penal Code nor the Texas Code of Criminal Procedure defines “ordinary person.” Furthermore, we have not found any authority which imposes a higher standard of culpability for homicides committed by persons with firearms training. We decline to adopt such a standard for assessing culpability in homicide cases. To do so would amount to legislating from the bench. See Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 579 (1892). Therefore, our analysis of the fourth Almanza likewise weighs in favor of a finding of harm.

In sum, the erroneous abstract portion of the charge, the evidence presented by the State, the prosecutor’s opening and closing arguments, and the State’s general theory of the inapplicability of the culpable mental states of reckless and criminal negligence to persons with firearms training, all emphasized the nature of Appellant’s conduct, thereby allowing the jury to believe they were authorized to convict Appellant of murder based solely on their belief that he knowingly or intentionally engaged in extremely dangerous conduct (wrestling a loaded firearm away from Lu-kas Taylor), without requiring a finding that he intended or knew that death would result. This error was only exacerbated by the misstatement of the law as it pertained to the applicability of reckless and criminal negligence as culpable mental states exclusively reserved to the acts of an “ordinary man.” These errors not only deprived Appellant of a valuable right, the right to be tried in accordance with the law, they also vitally affected his defensive theory, to-wit: that Lukas Taylor’s death was the result of reckless or criminally negligent conduct or was the result of a terrible and tragic accident. Based upon the entire record of this case, we conclude that the trial court’s charge error caused Appellant egregious harm. Point of error five is sustained.

C. Conclusion

Consequently, the trial court’s judgment is reversed and the cause is remanded to the trial court for further proceedings.

QUINN, C.J., dissenting.

BRIAN QUINN, Chief Justice,

dissenting.

I respectfully dissent from the conclusion that the evidence of guilt was legally sufficient. My conclusion is founded upon the test we have historically utilized in addressing such issues. The test mandates that we defer to the jury’s decision unless it is irrational or not supported by some evidence. Ortegon v. State, 267 S.W.3d 537, 546 (Tex.App.-Amarillo 2008, pet. ref d). That test is not a mandate of our own creation but rather that of our Court of Criminal Appeals espoused years ago, e.g., Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988) (requiring intermediate appellate courts to deem legitimate a jury’s verdict unless it was irrational or lacked evidentiary support), and, as such, must be followed.

So stated, the standard of review by which we must abide likens to the words oft used in describing the standard of review utilized in assessing whether a decision evinced an abuse of discretion. According to the latter, the decision must comport with the law and have evidentiary basis, Rachal v. State, 917 S.W.2d 799, 808 (Tex.Crim.App.1996), or fall within the zone of reasonable disagreement. Winegarner v. State, 235 S.W.3d 787, 790 (Tex.Crim.App.2007). Both gauge the actor’s (the factfinder’s or judge’s) conduct against the rules of law and the circumstances (or evidence) before him. And, given that, both have two components, that is, the rationality or reasonableness of the decision and the presence of evidence to support it.

It is the first component that I now discuss in conjunction with the appeal before me. At the very least, to be rational a decision must be one made by a body opting to comport its determination to the law. Again, harkening back to the idea of abused discretion, a ruling that deviates from the law or misconstrues the law is not a legitimate exercise of discretion. Racked) 917 S.W.2d at 808. Likewise, a verdict founded upon inaccurate legal theorems cannot comport with the law and thereby be rational. And, therein lays the seed of my discontent.

The only “evidence” purporting to illustrate that the appellant intentionally or knowingly intended the death of the victim came from Texas Ranger Jay Foster. As indicated in the majority opinion, he all but conceded that he actually found nothing indicating that appellant intentionally killed anyone. Nonetheless, that did not stop him from arriving at the conclusion he desired by interjecting evidence regarding appellant’s employment and hypothesizing therefrom. As a prison guard, according to the ranger, appellant should be held to a higher standard of conduct due to his familiarity with firearms. And, the ranger continued, holding him to that higher standard required one to conclude that appellant knowingly caused the death of Lukas Taylor as he tried to take the gun away from him. There are two fatal flaws in considering such comments and inferences therefrom as probative evidence when assessing the legal sufficiency of the evidence, however.

First, if those suppositions were to comport with the law, they would be nothing other than conclusions of law; that is, statements of what the law is. Ford v. State, 108 Tex.Crim. 626, 2 S.W.2d 265, 266 (1927) (defining a conclusion of law). And, as we know, statements tantamount to conclusions of law are not probative evidence under our jurisprudence. Urschel v. Garcia, 164 S.W.2d 804, 806 (Tex.Civ.App.-San Antonio 1942, writ ref'd w.o.m.) (stating that a conclusion of law is not any evidence supporting a verdict); Watson v. Tamez, 136 S.W.2d 645, 646 (Tex.Civ.App.-San Antonio 1940, no writ) (stating that a conclusion of law has no probative force and cannot be considered evidence even if no objection is made to it). Second, the ranger’s opinion is not even a correct statement of the law. The State cites us to no authority holding that because one may be employed as a prison guard or peace officer, he is bound by a higher standard of conduct when handling firearms. Nor did I find any such authority. And, while it may be arguable that one’s familiarity with such weapons may mean that he or she has a greater awareness of the harm they can inflict, that does not logically entitle one to conclude that any particular outcome linked to the handling of such weapons by those people was intended. I remind the reader that to be guilty of intentionally causing the death of another, the actor must have had the conscious objective or desire to cause the result, i.e. the death of the victim. Tex. Penal Code Ann. § 6.03(a) (Vernon 2003). Being aware of the potential for harm does not equate to proof that appellant had the conscious objective or desire to kill.

Nor does the evidence of record illustrate a knowing murder for purposes of the Texas Penal Code. For the death to fall within that category, the actor must be aware that his conduct is reasonably certain to cause death. Id. § 6.03(b). While appellant may have known, due to his training, that struggling with another for a gun could result in someone’s death, that is not evidence that his conduct would, with reasonable certainty, cause death. Indeed, if knowing that one’s handling or mishandling of a firearm could result in a death were enough to satisfy the mens rea for murder, then every experienced hunter holding a rifle or handgun would have the requisite mens rea for the crime. This is so because he or she undoubtedly knows that manipulating such a weapon could cause death should it discharge for whatever reason, and that is not a posture in which I care to put the millions of hunters in this state or anyone else that may care to exercise rights allowed under the Second Amendment to the United States Constitution. Rather, the evidence here had to illustrate that appellant was reasonably certain that his attempt to retrieve the handgun would result in death, and a Texas Ranger’s opinion founded on a mistaken legal premise is not such evidence.

That the ranger purportedly discredited appellant’s version of how or why the handgun discharged fails to fill the mens rea void as well. To believe otherwise would be to equate a negative (i e. discrediting a defendant’s version of what happened) to a positive (i.e. proof that the contrary occurred or that appellant pulled the trigger). To my limited understanding of math, science and logic, that is not possible. Furthermore, it may well be that appellant had his finger on the trigger when the gun fired but the record leaves me to guess at whether he, at that time, desired the death of his friend or even was reasonably certain that death would result. Whether the trigger was pulled via appellant’s own muscle contractions which manipulated his finger’s movement or by the victim somehow pulling the weapon or striking appellant’s finger is also left to conjecture.

As for the testimony coming from those who simply concluded that appellant “caused” the victim’s death or “caused” the shooting, neither statement addresses the concept of mens rea; rather it simply involves nexus or causation at best. Such comments are nothing more than saying that appellant erected the dominoes. One cannot logically deduce from the act of erecting them that he either knocked them over, intended that they be knocked over, or was reasonably certain that they would be knocked over.

Thus, what we have here is a situation wherein the jury must have adopted misstatements of the law, accepted legal conclusions as evidence, or made logically insupportable inferences to ultimately arrive at the finding that appellant committed murder. Because a jury does not act reasonably when doing so, its finding is irrational.

As for the second prong of the standard of review, I too believe that it has application here. Again, the only way that the jury could have found appellant guilty of intentional murder is by accepting as evidence the ranger’s utterance regarding the application of higher standards of conduct to appellant. Yet, since those comments are nothing short of conclusions of law (and legally inaccurate conclusions at that), they had no probative evidentiary force. This, in turn, means that they are not evidence upon which the verdict could be based. .

In sum, I would sustain appellant’s legal sufficiency point, reverse the judgment and render judgment acquitting appellant of murder.

      . Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 96 L.Ed. 288 (1952).

      . Murder is a "result of conduct" offense, which means that the culpable mental state focuses on the result of the conduct, i.e., causing the death of an individual; as opposed to a "nature of conduct” offense where the focus is on the conduct itself. Cook v. State, 884 S.W.2d 485, 491 (Tex.Crim.App.1994).

      . Although the abstract portion of the Charge of the Court also included the full statutory definition of ''intentional'' found in, § 6.03(a) of the Texas Penal Code, the State does not concede that the trial court erred in that respect.

      . Presciliano testified that the victim put the gun up when asked, but took it out a second time without unloading it.

      . According to Appellant’s statement, he had recently acquired the .44 magnum and Lukas had admired it on several occasions. In his statement, he wrote:
      Lukas Taylor reached between my couch and shelves and got my pistol box which contained a .44 magnum pistol inside a holster. Lukas Taylor then opend [sic] the pistol holster. I then told Lukas Taylor to put the pistol up, but he didn't, so I continued to tell Lukas Taylor to put up the .44 magnum. Lukas Taylor continued to hold the .44 magnum so I got up to get it from Lukas Taylor and then Lukas Taylor pulled the .44 magnum away from me and towards Lukas Taylor. Lukas Taylor had his hand around the grip and finger on the trigger of the .44 magnum when I grabbed the .44 magnum to put it up. Lukas Taylor then twisted the .44 magnum away from me and toward himself. At that time, the .44 magnum fired striking Lukas Taylor in the chest....

      . Generally, when a party presents multiple grounds for reversal, an appellate court should first address those points that would afford the party the greatest relief. See Tex. R.App. P. 43.3; See also Bradleys' Elec. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex.1999).

      . Tex.R.App. P. 47.1.

      . In his dissent, Chief Justice Quinn takes issue with the conclusion that the evidence of guilt was legally sufficient to support a finding of guilt to the offense of murder. Finding Ranger Foster’s testimony incorrectly states the law, he logically concludes that a jury does not act reasonably by adopting those misstatements. While we agree that a jury should not base its verdict upon an incorrect understanding of the law, from a legal sufficiency analysis prospective, we must presume that the jury correctly followed that portion of the trial court's instructions that did correctly state the. law. Kirsch v. State, 306 S.W.3d 738, 748 n. 33 (Tex.Crim.App.2010). As discussed further in Section II, Ranger Foster’s objectionable testimony only emphasizes the egregious nature of the misstatement of law found in the Court's Charge in this case.

      . Furthermore, we note that, in light of Dougherty, the State analyzed all four Alman-za factors in its Supplemental Brief.

      . See Tex. Penal Code Ann. § 19.04 (Vernon 2003).

      . See Tex. Penal Code Ann. § 19.05 (Vernon 2003).

      . The culpable mental states of recklessness and criminal negligence provide that the actor's risk “constitutes a gross deviation from the standard of care that an ordinary person would exercise ... as viewed from the actor's standpoint.” (Emphasis added).

      .Although the admissibility of portions of Ranger Foster's testimony was raised by Appellant in his second point of error, for purposes of egregious harm review, we need not address that contention.

      . Defense counsel objected, "asked and answered for the third time, Your Honor.” The objection was overruled.

      . A conviction is not subject to reversal on the basis of factually insufficient evidence unless: (1) the evidence supporting the conviction is “too weak” to support the factfinders verdict, or (2) considering conflicting evidence, the factfinders verdict is “against the great weight and preponderance of the evidence.” Although factual sufficiency was raised by Appellant in his fourth point of error, we need not fully address that issue for purposes of egregious harm review.

      . It is the duty of a court to administer the law as it is written, and not to make the law; and however harsh a statute may seem to be, or whatever may seem to be its omissions, courts cannot on such considerations by construction retrain its operation or make it apply to cases to which it does not apply, without assuming functions that pertain solely to the legislative department of the government.


source: Caselaw Access Project

author: Chief Justice MORRISS.

license: Public Domain

text:
    Latoya SMITH, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00094-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted May 10, 2010.
    Decided June 2, 2010.

      Craig L. Henry, Texarkana, for appellant.
    Michael Shepherd, Jerry D. Rochelle, Samantha Oglesby, Asst. Dist. Attorneys, Texarkana, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by

Chief Justice MORRISS.

The physical abuse suffered by the victim in this case over a period of days was reminiscent of torture reportedly used by rogue captors to break military prisoners. Two attackers repeatedly assaulted the much smaller and weaker victim, sometimes kicking her, sometimes slamming her into the wall, sometimes striking her with belts. They made her stand barefooted and motionless for hours at a time, sometimes atop an overturned plastic milk crate cast using a large open grid pattern, which caused her additional pain. When she faltered, she was further assaulted. As if the victim had not suffered enough, on the final day of the attacks, her female attacker repeatedly pushed the exhausted victim backward onto the floor. Each fall caused the victim’s head to hit the floor; the last time hard enough so a witness heard the victim’s “brain crack.” The victim, River Phoenix Williams, died from her injuries.

River Phoenix was two years old. The attackers were her father and the father’s live-in girlfriend.

Just as River Phoenix had been entitled to the protections of the law, her attackers, too, are entitled to all applicable protective provisions of the law.

Latoya Smith, the live-in girlfriend, was convicted in River Phoenix’s death, after River Phoenix’s father, Neil Patrick Dewitt, had pled guilty to the same crime.

Sentenced to life imprisonment without parole, Smith appeals, urging a number of arguments but making no challenge to the sufficiency of the evidence to prove the offense of capital murder. We affirm the trial court’s judgment because (1) the State’s nondisclosure of certain evidence did not require an in camera inspection of the State’s file or a mistrial, (2) no Confrontation Clause violation arose from the trial court’s rulings regarding the testimony of Wade and Roberson, (3) admitting River Phoenix’s autopsy report did not violate the Confrontation Clause, (4) excluding evidence of Smith’s mental health history during the guilt/innocence phase was not error, and (5) admitting evidence of Smith’s prior behavior and attitude toward River Phoenix was not error. We address the arguments in that order, after recounting the facts in greater detail.

Before her death, River Phoenix lived with Dewitt, Smith, and River Phoenix’s minor sister, KT. Dewitt admitted that he was party to the abuse that caused his child’s death, pled guilty to capital murder, and also received a sentence of life imprisonment without parole. He testified against Smith during her trial, consistently said that the two of them killed River Phoenix, and enlightened the jury on the origins of Smith’s jealousy, dislike, and abuse of River Phoenix, who was Dewitt’s daughter by another woman. Dewitt stated, “When I found out that [River Phoenix] was my child, [Smith] had said, well, there’s your child you could’ve had with me.” Dewitt also testified that Smith would never accept River Phoenix, and felt that Dewitt “cheated on her because [River Phoenix] came in after we were together.” Smith’s journal complained that Dewitt told River Phoenix that Smith was picking on her.

So now whenever I come in the room when she’s eating she stops eating and watches me like I’m the TV ..., so now I don’t go into any room that she’s in and I don’t say anything to her and I leave her and [Dewitt] alone and they seem to do just fine without me around. Good news, she goes home [to her mother] on the first of the month. The bad news is today is only the 27th of the month. I have never disliked a child so much in my life. I wish she didn’t exist.

For this reason, both Dewitt and K.T. testified, Smith had a “bad” relationship with River Phoenix resulting in child abuse.

Some of Smith’s treatment of River Phoenix was described by Kiara Kashawn Wade and her mother, Evelyn Roberson. Smith, a stay-at-home hair stylist, booked an appointment with Wade for hair braiding. When Wade and Roberson arrived, they noticed that River Phoenix was left in the back yard alone. Wade testified:

When [Smith] started to braid my hair, [River Phoenix] was standing next to us, and [Smith] didn’t like that. She said, go play with the toys or go play with the dog. And [River Phoenix] didn’t move, she just stood there. And that’s when [Smith] went on saying, we bought her all these toys and she don’t play with them, and she ended up siccing the dog on the baby, making the baby cry .... [Smith] was just putting the dog on the baby.

Wade asked Smith to stop, to which Smith replied, “[I]f you don’t like it, then you can take her home with you.” Smith then forced River Phoenix to stand in a corner for seven hours. “After she put her in a corner, [River Phoenix] kept crying .... But as [Smith] was talking to me .... she was talking about [River Phoenix’s] mother, she was throwing stuff at the baby; hairbrushes, she threw some grease at her, and she threw a shoe at her.” Smith reportedly told Wade that she hoped Dewitt “did get custody of the baby, that way she could do what she wanted to with [River Phoenix].” Wade said, “[Y]ou could tell [River Phoenix] wanted to sit down. You know, a baby’s legs ... she was shaking _ She had been standing for almost six hours now.” At one point, Smith checked River Phoenix’s diaper, found it dirty, told her she stank, “smashed” the diaper against her, and “made her sit in it.” Smith refused Wade’s offer of help to change the diaper. When Wade offered River Phoenix food, Smith “knocked it out of [her] hand” and offered River Phoenix the food herself. When River Phoenix backed away, Smith said that she had “a nasty attitude towards the people that take care of her, but with everybody else that she don’t know she’s very friendly.” Toward the end of the evening, Dewitt arrived and was instructed not to feed River Phoenix “anything because all the food in the house belonged to [Smith].” The couple joked and “said they treat the dog better than they treat [River Phoenix] because her attitude is so messed up.” A distraught Wade returned to Roberson’s house and reported the day’s events. Roberson attempted an intervention with Dewitt and Smith, which resulted in Smith cursing the child and blaming her for her stubbornness. The couple told Roberson that River Phoenix “was the problem.”

The problems continued. The day before River Phoenix’s death, she “was in her chair and didn’t want to eat.” Smith became upset, yelled at the child, took her from the dinner table, and gave her a bath instead. Then, River Phoenix was instructed to dress herself. When the two-year-old was unsuccessful at this task, Smith spanked the child with a red leather belt that had a brass buckle, a weapon used regularly by Smith to beat the child. Smith “had beat her for a while, and then she got increasingly frustrated and passed her to” Dewitt, who beat her with a black leather belt. At one point, Dewitt “hit her once over the top of the head with the belt.” Dewitt justified his actions by claiming to be supportive of Smith’s theory that River Phoenix was coddled.

The couple passed the baby back and forth between themselves for continued beatings over the course of several hours. The whippings ended after Smith grabbed the child by her arms, “rammed her into the wall,” “dropped kicked her out of the way,” and walked away from her. As if the child had not suffered enough, she was later made to stand, without shoes, on a plastic crate cast with a large grid pattern in its plastic body. After Dewitt nudged her with his foot, River Phoenix fell from the crate, hit her head on a nearby nightstand, climbed back up, and continued to stand throughout the night.

The next morning, Dewitt left for work, and K.T. boarded her school bus. Dewitt had been “cheating on” Smith with another woman whom he met on the Yahoo Singles dating website. Smith discovered the website and called Dewitt at work to inquire about the other woman. He received angry telephone calls all day culminating in threats against River Phoenix’s life, including one instructing Dewitt “to be careful when I pulled into the garage because [River Phoenix] would be lying there dead.” Dewitt did not rush home.

Around 1:00 p.m., Karrie Sue McNeil arrived to clean the apartment next door. She noticed the unmistakable sound, coming from the Dewitt-Smith residence, of a baby crying and screaming in pain. The child continued to cry and scream for the entire hour and a half it took McNeil to finish her job. While she contemplated reporting her suspicions, McNeil did not act on that idea.

K.T. testified that she returned from school that day to find River Phoenix “standing in the corner hunched over, and her knees — her legs were swelled up and she had bags under her eyes.” Smith sat on the couch and would hit River Phoenix “with the belt on her legs” when the baby would fall down from standing. K.T. was forbidden to intervene. When Smith had her fill of this torture, K.T. was allowed to bathe River Phoenix. K.T. observed “[s]he had whip marks on her legs and on her back” and “nail marks on the back of her ear[s].” After the bath, K.T. took her baby sister to the living room where Smith was watching television. Smith “kneeled down in front of’ the baby, and “pushed her down.” River Phoenix fell backward, hit her head on the floor, and began to cry. When she stumbled up to a standing position, Smith twice repeated this action. As a result of the third push to the ground, K.T. heard River Phoenix’s “brain crack.” River Phoenix “laid there looking at the ceiling,” and “was wobbling” after she managed to stand up again. K.T. could tell her sister was badly injured. She next witnessed Smith call Dewitt and tell him “[s]he was going to hang [River Phoenix] with her red belt.” At 9:00 p.m., K.T. was sent to bed.

Dewitt finally arrived around 9:30 p.m. to find River Phoenix “in a full-blown seizure” while Smith sat apathetically on the couch watching television. Dewitt made the decision not to seek emergency medical care after observing the extensive bruising on River Phoenix’s body. He testified Smith sat on the couch “and kept rocking backing [sic] and forth, and she was like, I’m going to jail, I’m going to jail, I’m going to jail.” River Phoenix suffered a second seizure. After putting River Phoenix in KT.’s bedroom, Dewitt ate dinner and went to bed, while Smith stayed awake pacing the hall.

K.T. checked on her sister the next morning. “Her breathing was slowing down and her heart was slowing down.” She informed her father, but went to school after his assurance that River Phoenix would be fine.

Shortly thereafter, River Phoenix died.

The couple “talked about blaming it on [K.T.] and saying that [K.T.] had kept hitting her, and that [Dewitt] would drive and dispose of the belts.” While Dewitt was disposing of evidence, Smith called the police.

Officer Latriesha Grandy spoke with Smith, who “didn’t show any concern for River Phoenix or her well-being or the kind of shape she was in. It seems that her goal was to make sure she” blamed K.T. for River Phoenix’s injuries. After speaking with Detective Gisela Altamirano, however, Smith began to blame Dewitt, and then the family dog, for River Phoenix’s condition. Grandy found River Phoenix nonresponsive with “bruises all over her body” consistent with physical abuse to her forehead, abdomen, arms, legs, and ears. LifeNet responder James Pappas testified “[t]here were various bruises of different sizes, shapes, locations, everywhere. The best way to describe it you couldn’t take your hand and place it anywhere on that child that your hand would not touch a bruise or more than one bruise.”

Dewitt and Smith followed River Phoenix to the hospital. Doctors informed Altamirano they believed the child had undergone severe physical abuse. The couple was arrested, and Smith gave inconsistent recorded statements to police about the causes of River Phoenix’s bruising and her death. River Phoenix’s autopsy report confirmed “extensive blunt force trauma, abrasions, lacerations, and contusions over much of the body surface, including the head, the trunk, and all four extremities, widely scattered throughout the body,” with the cause of death being blunt head trauma.

(1) The State’s Nondisclosure of Certain Evidence Did Not Require an in Camera Inspection of the State’s File or a Mistrial

Smith contends that she made a plausible showing entitling her to an in camera inspection of the State’s files by arguing the State violated the Brady rule in failing to disclose Dewitt’s statements made to Justice of the Peace Nancy Talley, his handwritten notes, and a DNA test result. In the same point of error, she also maintains that she was entitled to a mistrial because of this nondisclosure.

We overrule these assertions by Smith because (A) Smith discovered Talley’s statements in time to effectively handle them at trial, (B) the trial court never ruled on whether the State’s failure to timely disclose Dewitt’s handwritten notes violated Brady, (C) no ruling was requested regarding the negative DNA test results, and (D) mistrial was not required in any case.

We first address the first three sub-points, all seeking to trigger an in camera inspection of the State’s file.

The United States Supreme Court case of Brady established that nondisclosure of evidence violates due process rights of an accused where it is: (1) suppressed by the State after request for the evidence is made by the defense; (2) favorable to the defense; and (3) material to the outcome of the case. 373 U.S. at 87, 83 S.Ct. 1194; Thomas v. State, 841 S.W.2d 399, 402-03 (Tex.Crim.App.1992) (en banc) (citing Moore v. Illinois, 408 U.S. 786, 92 S.Ct. 2562, 33 L.Ed.2d 706 (1972)).

“There is no general constitutional right to discovery in a criminal case, and Brady did not create one.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977); Menefee v. State, 211 S.W.3d 893, 902 (Tex.App.-Texarkana 2006, pet. ref'd). “Thus, the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused thát, if suppressed, would deprive the defendant of a fair trial.” United States v. Bagley, 473 U.S. 667, 675, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). “In some situations where a defendant has failed to receive anything less than full disclosure under the Brady rule, he has a due process right to have the trial court examine the requested evidence in camera and then order disclosure of any appropriate information.” Michaelwicz v. State, 186 S.W.3d 601, 614 (Tex.App.-Austin 2006, pet. ref'd).

To be entitled to have the trial court review the State’s file, however, Smith was required to “establish a basis for [her] claim that it contained] material evidence.” Pennsylvania v. Ritchie, 480 U.S. 39, 58, n. 15, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (citing United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 73 L.Ed.2d 1193 (1982) (A defendant “must at least make some plausible showing of how their testimony would have been both material and favorable to [the] defense.”)); see Ransonette v. State, 550 S.W.2d 36, 40 (Tex.Crim.App.1976) (“we know of no constitutional obligation of the trial court to peruse the prosecutor’s file for exculpatory evidence in the absence of a specific request supported by some showing that such evidence exists”).

We review for abuse of discretion the issue of whether Smith made a sufficient showing to require an in camera inspection, while keeping in mind that the trial court is the sole judge of the credibility of the witnesses. See Page v. State, 7 S.W.3d 202, 207-08 (Tex.App.-Fort Worth 1999, pet. ref'd).

(A) Smith Discovered Talley’s Statements in Time to Effectively Handle Them at Trial

Talley testified Dewitt told her “that his girlfriend went to correct her and the little girl either clawed at her hand or bit at her hand or something to that effect, and she became upset. And when she became upset, he didn’t like his girlfriend being upset and he totally lost it.” “He also told me that he picked her up, and at some point when he let go of her, she— something about a coffee table.”

After Talley was cross-examined, she was excused without objection. Immediately after Talley was excused, Smith raised the issue of a Brady violation and argued Talley’s testimony was exculpatory because Dewitt never indicated to Talley that Smith had any responsibility for River Phoenix’s death. The State responded that there were no written documents supporting Talley’s testimony and alleged that Smith was in the room while Dewitt made the statements.

In ruling that failing to disclose Talley’s testimony did not violate Brady, the trial court found Smith’s counsel had discovered the substance of her testimony in sufficient time to prepare for trial. This was demonstrated by the subpoena, directing Talley to appear and testify, issued at Smith’s request made seven days before trial. The trial court also found that Talley’s testimony was not material.

It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt or punishment. Ritchie, 480 U.S. at 57, 107 S.Ct. 989 (citing Brady, 373 U.S. at 87, 83 S.Ct. 1194). Evidence “is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Id.; Thomas, 841 S.W.2d at 404. Because “the materiality issue turns on whether the defendant was prejudiced by delayed disclosure,” “if the defendant actually knows the facts which are withheld, he is not entitled to relief based upon the State’s failure to disclose the same facts.” Williams v. State, 995 S.W.2d 754, 761 (Tex.App.-San Antonio 1999, no pet.); State v. DeLeon, 971 S.W.2d 701, 706 (Tex.App.-Amarillo 1998, pet. ref'd).

As trier of fact, the trial court was free to believe Talley’s testimony that Smith was present during Dewitt’s statements and that counsel was aware of the substance of her testimony. It apparently so believed, since it ruled that there was no Brady violation with regard to Talley’s testimony.

(B) The Trial Court Never Ruled on Whether the State’s Failure to Timely Disclose Dewitt’s Handvrritten Notes Violated Brady

During Dewitt’s testimony at trial, Smith’s attorney noticed Dewitt was holding handwritten notes, which reportedly were Dewitt’s personal notes made shortly before trial. The State claimed it had received a copy of the notes the week before trial. The notes were made by Dewitt, contained a time line of events, the majority of the substance of Dewitt’s testimony, and the following statements, among others, which could be viewed as exculpatory or impeachment evidence:

I had punched her and she fell on the floor backwards .... I had hit her over the head-strap part of my belt. Latoya said she was bleeding after that on the scalp .... I then put her on [the] crate by the nightstand. She was at the edge. I then took my foot while lying down and nudged her to the middle where she fell and hit her head on the nightstand .... I got home at 9:26 p.m. to find River Phoenix in a full seizure at that time .... [Latoya] asked do you want to take her to the hospital ... I saw the bruise on her mid section and said “F* * * No.” She had another real quick seizure and it stopped. She had opened her eyes and then she closed them and I thought she was asleep ... I was assured by Latoya that she didn’t hit her head ... I had repeatedly pushed River Phoenix down and she would fall backwards and land on the purple rug and then made to get back up ... I told Latoya I [threw] the belts out ... I was going to get rid of the belts.

Smith’s counsel moved for mistrial and argued that the State’s failure to disclose this time line violated Brady. He also argued that failure to disclose the notes should be considered in determining whether the court should grant the in camera inspection. The State responded that, although the time line was received by the prosecutor’s office, they were “never part of the file.” Noting that it had previously ordered the State to disclose such information, the trial court arranged to have copies of the notes made, allowed the State to conclude its direct examination, and declared an overnight recess to give Smith’s attorney “an opportunity to use it to prepare cross-examination of Mr. Dewitt.” The motion for mistrial was denied.

The following morning, Smith’s counsel moved for a seven-day continuance and complained that the notes “completely eviscerated my defense.” Although the trial court decided the State suppressed favorable evidence in spite of a proper request by the defense, it found that the materiality of the notes had not yet been established and indicated it would carry the objection until the end of cross-examination.

For a complaint for appellate review to be preserved, the trial court must have “ruled on the request, objection, or motion, either expressly or implicitly,” or must have “refused to rule on the request” despite objection to the refusal to rule. Tex. R.Ajpp. P. 88.1. Here, the record reveals that the trial court never ruled on the issue of whether the handwritten notes violated Brady. This was acknowledged by Smith in her brief.

(C) No Ruling Was Requested Regarding the Negative DNA Test Results

During a search of Smith’s residence, officers located a broken broom. A test indicated there was blood on the broom, but a subsequent DNA test excluded River Phoenix as the source of the blood. Smith was provided a copy of the DNA results, and she introduced a copy of those results at trial. While complaining of untimely disclosure of the DNA results, Smith does not raise the issue of whether a Brady violation occurred with respect to the DNA test results. Since the State did disclose the test results, and no objection to the results was made, the trial court was free to determine that Smith’s argument, raised during her motion for in camera inspection after introduction of the DNA test results, provided no plausible basis that the State’s files would contain further undisclosed, material evidence.

In sum, the trial court concluded that it “has no duty to do an in camera investigation,” because no Brady violation occurred. Without a plausible showing that the State’s file contained undisclosed material evidence, we conclude that the trial court did not abuse its discretion in failing to grant Smith’s motion for an in camera inspection.

(D) Mistrial Was Not Required in any Case

“Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” Archie v. State, 221 S.W.3d 695, 699 (Tex.Crim.App.2007) (quoting Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004)). We review a trial court’s ruling on a motion for mistrial for an abuse of discretion. Towery v. State, 262 S.W.3d 586, 598 (Tex.App.-Texarkana 2008, pet. ref'd) (citing Archie, 221 S.W.3d at 699). We will uphold the trial court’s ruling if it was within the zone of reasonable disagreement. Archie, 221 S.W.3d at 699 (citing Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004)).

Because the trial court could find the lack of incurable prejudice to Smith resulting from any of the above, we conclude it did not abuse its discretion in overruling Smith’s motion for mistrial.

(2) No Confrontation Violation Arose from the Trial Court’s Rulings Regarding the Testimony of Wade and Roberson

Smith argues that the trial court violated the Confrontation Clause by limiting her cross-examination on the subject of Wade’s and Roberson’s participation in the Hell’s Lovers biker group. We disagree.

(A) Wade’s Testimony Was Not Limited by the Trial Court

During Wade’s cross-examination, the following exchange occurred:

Q. Now, your mother is Evelyn Roberson?
A. Yes....
Q. And her husband is Nathaniel Roberson?
A. Yes.
Q. And he’s a member of Hell’s Lovers?
Mr. Shepherd: Your Honor, the State is going to object once again to the relevance of that.
THE COURT: Well, I’ll allow that question.
Q. [Mr. Henry] He’s a member of the Hell’s Lovers?
A. Yes, sir.
Q. And your mother, is she property of the Hell’s Lovers?
Mr. Shepherd: Once again, Judge, this is not relevant to the issue before this jury.
THE COURT: Well, the Court will sustain that, also the characterization.
A. At the time she was, yes.
Mr. Shepherd: You don’t have to answer that.
A. Oh, okay.
[Defense Counsel]: Pass the witness, Your Honor.
Mr. Shepherd: Nothing further.
THE COURT: All right, you can step down.

In her brief, Smith complains that the trial court did not allow her to establish that Wade’s mother was “property” of the Hell’s Lovers biker gang. Review of the record demonstrates that Wade provided the answer counsel sought, the answer was not struck, Smith’s counsel passed the witness, and Smith did not attempt (and, thus, the trial court did not limit) further cross-examination.

(B) Limiting Roberson’s Testimony Was Within the Trial Court’s Discretion, Based on Its Lack of Relevance and the Failure to Show Roberson’s Bias Against Smith

The right to cross-examination extends to any matter that could reflect on the witness’ credibility. Virts v. State, 739 S.W.2d 25, 28 (Tex.Crim.App.1987). The right of an accused to cross-examine a testifying State’s witness includes the right to impeach the witness with relevant evidence that might reflect bias, interest, prejudice, inconsistent statements, traits of character affecting credibility, or evidence that might go to any impairment or disability affecting the witness’ credibility. Id. at 29; Alexander v. State, 949 S.W.2d 772, 774 (Tex.App.-Dallas 1997, pet. ref'd). Thus, the scope of cross-examination should extend to all facts and circumstances that, when tested by human experience, tend to show that a witness may shade his or her testimony for the purpose of helping to establish only one side of the cause. Carroll v. State, 916 S.W.2d 494, 497-98 (Tex.Crim.App.1996); Alexander, 949 S.W.2d at 774-75.

Although a defendant’s right to confrontation and cross-examination is constitutionally safeguarded, the right is not absolute. Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Huff v. State, 897 S.W.2d 829, 839 (Tex.App.-Dallas 1995, pet. ref'd). The trial court retains great latitude in imposing reasonable limitations on cross-examination. Virts, 739 S.W.2d at 28. The court may properly limit the scope of cross-examination to prevent harassment, prejudice, confusion of the issues, harm to the witness, and repetitive or marginally relevant interrogation. Carroll, 916 S.W.2d at 497. When considering whether a trial court’s decision to exclude testimony is error, we must determine whether the trial court abused its discretion. Love v. State, 861 S.W.2d 899, 903 (Tex.Crim.App.1993). This inquiry depends on the facts of each case. Id. at 904.

During Roberson’s cross-examination, Smith requested the trial court’s permission to inquire about her participation in Hell’s Lovers. Smith argued the evidence was relevant for the purpose of demonstrating bias toward Dewitt. “[T]he right to cross-examination includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or unbelievable.” Ritchie, 480 U.S. at 51-52, 107 S.Ct. 989. However, the court reminded counsel that Roberson testified against both Dewitt and Smith. It stated, “Well, I think that you can go into the fact that her husband and Dewitt are friends. I think that you can go into the fact—you can ask whether or not due to that friendship would she have a tendency to testify as to—based on that relationship.”

A proffer outside the jury’s presence produced the following testimony:

Q. And Mr. Nathaniel Roberson is a member of the Hell’s Lovers motorcycle gang?
A. That is not correct. He’s a member of the Hell’s Lovers motorcycle club. It is not a gang.
Q. Okay. And the Hell’s Lovers motorcycle club, what exactly is that?
A. It’s an organization. They ride motorcycles, and they’re located in a lot of different states....
Q. ... were you property of the Hell’s Lovers motorcycle organization?
A. Sir, I am not a member of the Hell’s Lovers organization.

Counsel did not question Roberson on the subject of bias. Here, the trial court concluded that testimony regarding participation in Hell’s Lovers, absent evidence of bias, was irrelevant to the issue of whether Smith intentionally or knowingly caused River Phoenix’s death. Because there was no error in that finding, there was no violation of the Confrontation Clause.

(3) Admitting River Phoenix’s Autopsy Report Did Not Violate the Confrontation Clause

Smith contends that the autopsy report constituted testimonial hearsay and that its admission violated her Sixth Amendment right to confront witnesses against her. We disagree.

We review a trial court’s decision to admit evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App.2005). “Although we defer to a trial court’s determination of historical facts and credibility, we review a constitutional legal ruling ... de novo.” Wall v. State, 184 S.W.3d 730, 742 (Tex.Crim.App.2006). A trial court’s ruling to admit evidence will not be reversed as long as it falls within the zone of reasonable disagreement. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990) (op. on reh’g).

“[I]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.” U.S. Const, amend. VI. The admission of a testimonial, out-of-court statement from a declarant who does not appear at trial violates the Confrontation Clause unless the declarant was unavailable to testify at trial and the defendant had a prior opportunity for cross-examination. Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006); Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In this case, the autopsy report was admitted into evidence during the direct examination of the medical examiner who performed the autopsy. Because the testifying medical examiner was available for cross-examination, there was no Confrontation Clause violation. Melendez-Diaz v. Massachusetts, — U.S. -, -, 129 S.Ct. 2527, 2531, 174 L.Ed.2d 314 (2009); Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354; see Briggs v. State, 789 S.W.2d 918 (Tex.Crim.App.1990). Thus, the trial court did not abuse its discretion in admitting the autopsy report.

(U) Excluding Evidence of Smith’s Mental-Health History from the Guilt/Innocence Phase Was Not Error

During Altamirano’s cross-examination, Smith attempted to offer emergency room medical records indicating she was suffering from “depression thoughts of suicide” in July 2007. The medical records referred to a previous suicide attempt, ingestion of Valium, and references that Smith had not been taking her anxiety and depression medication. Smith argues that exclusion of this evidence, relevant to her capacity to formulate the requisite mens rea, was an abuse of the trial court’s discretion. See Walters v. State, 247 S.W.3d 204, 217 (Tex.Crim.App.2007).

Texas does not recognize diminished capacity as an affirmative defense. Ruffin v. State, 270 S.W.3d 586, 593 (Tex.Crim.App.2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex.Crim.App.2005); see Rhoten v. State, 299 S.W.3d 349 (Tex.App.-Texarkana 2009, no pet.). Rather, it is a “failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense.” Jackson, 160 S.W.3d at 573-74; Ruffin, 270 S.W.3d at 593. To be admissible in tending to disprove state of mind, the evidence in this case must have shown that Smith, due to her mental condition, was either unable to form a conscious objective or desire or to engage in conduct causing River Phoenix’s death, or could not be aware her actions were reasonably certain to cause River Phoenix’s death. See Jackson, 160 S.W.3d at 574; Thomas v. State, 886 S.W.2d 388, 391 (Tex.App.Houston [1st Dist.] 1994, writ ref'd).

The trial court expressed “there is no direct evidence that’s been presented to suggest that the hospitalization on I believe July 11, 2007 has any relevance as to her state of mind because there’s no direct evidence that she did not have ... the requisite state of mind to form intent to commit the offense in question.” The court determined that, without such a showing, this evidence could only be considered in mitigation.

As further support, Smith cited Article 38.36(a) of the Texas Code of Criminal Procedure, which provides:

In all prosecutions for murder, the state or the defendant shall be permitted to offer testimony as to all relevant facts and circumstances surrounding the killing and the previous relationship existing between the accused and the deceased, together with all relevant facts and circumstances going to show the condition of the mind of the accused at the time of the offense.

Tex.Code CRim. PRoc. Ann. art. 38.36(a) (Vernon 2005). Smith’s medical records indicate that her treatment plan included medications to treat anxiety and depression and that she was discharged after an appointment was set up for her at a local behavior treatment facility. There was no evidence presented that Smith was not taking her medication and following her treatment plan at the time of the offense. As the court pointed out, the record does not demonstrate that Smith’s state of mind during the July incident, which occurred while she was off of her prescribed medication, was her state of mind at the time of the offense in September.

Because Smith did not present any evidence that she was unable to form the requisite intent due to her depression and thoughts of suicide, the medical records were not admissible as tending to disprove her state of mind. See Jackson, 160 S.W.3d at 574; Thomas, 886 S.W.2d at 391. Thus, the trial court did not abuse its discretion in failing to admit the records during the guilt/innocence phase.

(5) Admitting Evidence of Smith’s Prior Behavior and Attitude Toward River Phoenix Was Not Error

Smith complains that introduction of Wade’s and Roberson’s testimony regarding Smith’s demeanor toward River Phoenix amounted to impermissible extraneous-offense evidence. She argues that the trial court erred in allowing the testimony over her Texas Rules of Evidence 401, 403, and 404 objections.

A trial court’s ruling on the admissibility of extraneous offenses is reviewed under an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex.Crim.App.2005). The interaction between several statutes governs the analysis in this case. First, if evidence is not relevant to a fact of consequence in the case, it may not be admitted. Tex.R. Evid. 401. “In all prosecutions for murder, the state ... shall be permitted to offer testimony as to all relevant facts and circumstances surrounding ... the previous relationship existing between the accused and the deceased.” Tex.Code Cmm. Proc. Ann. art. 38.36(a). This article is read in conjunction with Rule 404(b). Smith v. State, 5 S.W.3d 673, 677-78 (Tex.Crim.App.1999). While evidence of other crimes, wrongs, or acts is not admissible “to prove the character of a person in order to show action in conformity therewith,” they may “be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Tex.R. Evid. 404(b). “Rule 404(b) is a rule of inclusion rather than exclusion.” De La Paz v. State, 279 S.W.3d 336, 343 (Tex.Crim.App.2009). “[I]f evidence (1) is introduced for a purpose other than character conformity; (2) has relevance to a ‘fact of consequence’ in the case, and; (3) remains free of any other constitutional or statutory prohibitions, it is admissible.” Segundo v. State, 270 S.W.3d 79, 88 n. 19 (Tex.Crim.App.2008) (quoting Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App.1996)). If evidence is admissible under the above rules, it may still be excluded under Rule 403 if the probative value of the evidence is substantially outweighed by unfair prejudice. Tex.R. Evid. 403. Whether extraneous-offense evidence has relevance apart from character conformity, as required by Rule 404(b), is a question for the trial court. Moses v. State, 105 S.W.3d 622, 627 (Tex.Crim.App.2003).

Here, Smith’s intent is a fact of consequence in this case. Wade’s and Roberson’s testimony regarding Smith’s previous actions are facts that have a tendency to make probable the State’s theory that Smith possessed the requisite intent at the time of the offense. Also, in a murder case, the relationship between an accused and the victim is “itself a material issue.” Garcia v. State, 201 S.W.3d 695, 703 (Tex.Crim.App.2006). The evidence was admissible under Rule 401. Next, evidence of Smith’s prior assault and interactions with River Phoenix are also admissible as a demonstration of their relationship under Article 38.36. Id. at 704; Baker v. State, 368 S.W.2d 627, 632 (Tex.Crim.App.1963) (finding prior assault on deceased six years ago not too remote, thus admissible under prior version of Article 38.36).

Although Wade and Roberson testified about prior bad acts, the State argued their testimony was being offered only to demonstrate intent and absence of mistake or accident, and the trial court issued a limiting instruction to the jury to that effect. Specifically, the trial court instructed the jury it could not consider the testimony “to prove the character of the Defendant in order to show that she acted in conformity therewith on the occasion in question.” “Evidence of prior extraneous offenses committed by the accused against the victim of the offense charged that show ill will or hostility toward the victim ‘is admissible as part of the State’s case in chief as circumstantial evidence of the existence of a motive for committing the offense charged.’ ” Page v. State, 819 S.W.2d 883, 887 (Tex.App.Houston [14th Dist.] 1991, pet. ref'd) (quoting Foy v. State, 593 S.W.2d 707, 709 (Tex.Crim.App. [Panel Op.] 1980)); see Bush v. State, 958 S.W.2d 503, 505-06 (Tex.App.-Fort Worth 1997, no pet.) (prior instances of violence toward murder victim admissible). Thus, although extraneous, the evidence was admissible under the exceptions listed under Rule 404(b). Garcia, 201 S.W.3d at 704 (evidence of prior bad act against victim “is admissible under Rule 404(b) for the purpose of illustrating the nature of’ the relationship between accused and victim).

Because Wade’s and Roberson’s testimony was introduced for a purpose other than character conformity, had relevance to intent, absence of mistake, and the nature of the relationship between Smith and River Phoenix, and remained free of any other constitutional or statutory prohibitions, it was admissible. Rankin, 974 S.W.2d at 709. Thus, we move to the question of whether the probative value of their testimony was substantially outweighed by unfair prejudice. Tex.R. Evid. 403; Garcia, 201 S.W.3d at 704. It is Smith’s burden to establish exclusion under this rule. Montgomery, 810 S.W.2d at 389.

The first factor we analyze in determining whether the prejudice of an extraneous offense substantially outweighs its probative value is “how compellingly the extraneous offense evidence serves to make a fact of consequence more or less probable—a factor which is related to the strength of the evidence presented by the proponent to show the defendant in fact committed the extraneous offense.” Santellan v. State, 939 S.W.2d 155, 169 (Tex.Crim.App.1997) (citing Montgomery, 810 S.W.2d at 389-90). As discussed above, Wade’s and Roberson’s statements compellingly made the allegation that Smith possessed the requisite murderous intent more probable. This factor favors admission of their testimony.

The second factor concerns the potential the other offense evidence has to impress the jury “in some irrational but nevertheless indelible way.” Santellan, 939 S.W.2d at 169 (citing Montgomery, 810 S.W.2d at 389-90). There is nothing in the record to indicate Smith’s prior bad acts would “lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged” in this murder case, especially given the trial court’s lengthy Rule 403 limiting instruction. Old Chief v. United States, 519 U.S. 172, 180, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). This factor also favors admission.

The third factor looks to “the time the proponent will need to develop the evidence, during which the jury will be distracted from consideration of the indicted offense.” Santellan, 939 S.W.2d at 169 (citing Montgomery, 810 S.W.2d at 389-90). The State presented a total of eleven witnesses. Wade’s and Roberson’s testimony regarding the extraneous acts comprised a small portion of the record. Therefore, we conclude this factor also weighed in favor of admitting their testimony.

The last factor involves the “force of the proponent’s need for this evidence to prove a fact of consequence, i.e., does the proponent have other probative evidence available to him to help establish this fact, and is this fact related to an issue in dispute.” The State’s need for Wade’s and Roberson’s testimony was required to rebut the defensive theory that only Dewitt was responsible for River Phoenix’s death. Although Dewitt and K.T. testified to actions conducted by Smith leading up to River Phoenix’s death, the jury may have decided Dewitt’s testimony was less credible due to a deal with prosecutors that he would not receive the death penalty if he testified against Smith. The jury could also believe that KT.’s testimony was biased toward her father, especially since she did not witness the beatings which occurred on the day before River Phoenix’s death, either because she was in school or because the beatings occurred after her bedtime. Moreover, testimony of witnesses outside of the home could lend more credibility to Dewitt’s and K.T.’s testimony. Thus, we find that the final factor also weighs in favor of admission and that the trial court did not err in concluding the probative value of Wade’s and Roberson’s testimony was not substantially outweighed by unfair prejudice.

Finding no error in admission of Wade’s and Roberson’s testimony to demonstrate Smith’s relationship with River Phoenix and intent to cause her death, we overrule this point of error.

We affirm the judgment of the trial court.

      . Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

      . A multifarious issue is one that raises more than one specific ground of error. In re S.K.A., 236 S.W.3d 875, 894 (Tex.App.-Texarkana 2007, pet. denied). We have repeatedly warned litigants to refrain from raising multifarious points of error. See, e.g., In re Guardianship of Moon, 216 S.W.3d 506, 508 (Tex.App.-Texarkana 2007, no pet.); Newby v. State, 169 S.W.3d 413, 414 (Tex.App.-Texar-kana 2005, pet. ref’d). Failure to heed our warnings runs the risk of having any multifarious issue(s) being summarily overruled. Newby, 169 S.W.3d at 414; Harris v. State, 133 S.W.3d 760, 764 n. 3 (Tex.App.-Texarkana 2004, pet. ref'd); Parra v. State, 935 S.W.2d 862, 875 (Tex.App.-Texarkana 1996, pet. ref'd). In the interest of addressing substantive issues, we will not take the opportunity in this case to overrule this point of error on the basis of it being multifarious.

      . Further, "failure to request a continuance waives any Brady violation” and indicates the evidence was, in fact, not material. Williams, 995 S.W.2d at 761 (citing Lindley v. State, 635 S.W.2d 541, 544 (Tex.Crim.App. [Panel Op.] 1982)); Yates v. State, 941 S.W.2d 357, 364 (Tex.App.-Waco 1997, pet. ref'd). We note that counsel’s request for continuance occurred after Talley was excused.

      . Impeachment evidence "falls within the Brady rule.” Bagley, 473 U.S. at 676, 105 S.Ct. 3375.

      . The record demonstrates that Smith did not argue that she be allowed to continue questioning Wade about Hell's Lovers to examine possible bias. This argument was only offered in reference to Roberson's cross-examination.

      . In support of her position, Smith cites the Court to cases discussing the affirmative defense of insanity.

      . A trial judge has discretion to determine whether evidence regarding state of mind would support a lesser-included offense, and the evidence can be presented during punishment in order to reduce the sentence assessed by the jury. Jackson, 160 S.W.3d at 574.

      . The additional 1,560 pages of medical records spanning several years, which Smith sought to introduce, covered mostly irrelevant checkups and hospital appointments, including physical diagnoses of tuberculosis, scoliosis, and resulting surgeries and back pain. Smith also sought to introduce Illinois Children and Family Services Department records, which may have provided insight into her home life as a child. We assume these records were introduced because some make references to a past medical history of depression and anxiety. However, a majority are simply irrelevant. Trial counsel did not point to the page numbers which supported his position that the records should be introduced, either to the trial court or in his brief. A trial court need not sort through challenged evidence in order to segregate admissible evidence from excludable evidence. Jones v. State, 843 S.W.2d 487, 492 (Tex.Crim.App.1992); see In re S.M., 207 S.W.3d 421, 424 (Tex.App.-Fort Worth 2006, pet. denied) (error not preserved where trial court required to sort through admissible and inadmissible evidence). In any event, there were no medical records provided for our review after July 2007.