AFFIRM AS MODIFIED; Opinion Filed May 20, 2024
S In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00119-CR
ASHLEY NICOLE WILSON, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the County Criminal Court No. 8 Dallas County, Texas Trial Court Cause No. MA19-04281-J
MEMORANDUM OPINION Before Justices Molberg, Nowell, and Kennedy Opinion by Justice Kennedy Ashley Nicole Wilson appeals her conviction for impersonating a security
officer. In three issues, appellant challenges the sufficiency of the evidence to
support her conviction, the trial court’s admission of extraneous-offense/bad-act
evidence, and the lack of any jury instruction on her mistake-of-fact defense. The
State requests modification of the judgment to reflect the correct name of the
attorney for the State. We overrule appellant’s issues and sustain the State’s cross-
issue. Accordingly, we affirm the judgment as modified. Because all issues are
settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4. BACKGROUND
Appellant had been working temporary jobs, including one that required her
to wear a t-shirt that said “security” while she passed out brochures at a convention,
when she decided she needed a career to support herself financially. Her mother
told her about a private security company seeking new employees, North Texas
Strike Force (“Strike Force”). Appellant applied and was hired in late 2018. As part
of her employment, appellant completed a 40-hour training course in December
2018. Appellant bought her own uniform, which included a jacket with “North
Texas Strike Force,” her name, and a badge on the shoulder. Appellant also
purchased a belt with a holster; she did not have a gun, but she did have empty
magazines in her holster.
On March 31, 2019, appellant was working a 12-hour shift at an apartment
complex. She was wearing the uniform and belt she had purchased and was sitting
in a parked security guard car eating her lunch. Appellant saw a naked man walking
past where she was parked in the parking lot. Appellant lowered the driver’s side
window and asked the man, later determined to be Christopher Willard, where he
was going and where he was coming from. Willard walked towards appellant where
she sat, reached through the half-open window of the car to hit her in her mouth, and
then opened the driver’s door to drag appellant out of the car. Two cars driving past
the security guard car stopped, and the drivers distracted Willard, so that appellant
was able to kick him off of her. Willard walked away from appellant, and she drove
–2– the security guard car out of the complex and back inside the complex while
observing where Willard was walking. Appellant informed dispatch what had
happened and when that call “somehow got disconnected,” she called the Dallas
Police Department and the owner of Strike Force, Victor Hobbs.
Soon thereafter, a firetruck and ambulance arrived, as well as Hobbs. While
waiting for emergency responders and Hobbs, appellant lost sight of Willard.
Hobbs, who was armed with a gun, and appellant walked through the complex,
looking for Willard in order to make sure no one else on the property was assaulted
by him.
Hobbs and appellant located Willard in an apartment unit. Hobbs announced
them as with Strike Force, and appellant approached the unit door, which was open
a crack, to look inside. Willard shouted to leave him alone and closed the door on
appellant’s foot. Hobbs kicked down the door to free appellant’s foot. Hobbs
attempted to subdue Willard and directed appellant to give him handcuffs. While
Hobbs was struggling to subdue Willard, appellant hit Willard with her flashlight.
Hobbs and appellant ran out of the apartment unit, and Willard chased after them,
armed with a board or table leg, which he swung at them. Victor Johnson, another
security guard, arrived and unsuccessfully attempted to stun Willard using a stun
gun. Johnson and Willard began fighting, while appellant and Hobbs told Willard
to put down the board or table leg. Willard turned and went towards Hobbs who
shot Willard. Hobbs yelled at appellant to call an ambulance. Appellant, Hobbs,
–3– and Johnson remained with Willard until the police arrived. The police split up the
security guards and interviewed them separately. Willard died from the gunshot
wound inflicted by Hobbs.
Appellant was charged by indictment with impersonating a security officer.
The case proceeded to trial before a jury, who found appellant guilty as charged in
the indictment. Appellant elected to be sentenced by the trial judge who imposed a
sentence of three days of confinement in jail. This appeal followed.
DISCUSSION
I. Sufficient Evidence Supports the Conviction
In her first issue, appellant challenges the sufficiency of the evidence to
support her conviction of impersonating a security officer.
When addressing a challenge to the sufficiency of the evidence, we consider
whether, after viewing all of the evidence in the light most favorable to the verdict,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Zuniga v. State, 551 S.W.3d 729, 732 (Tex. Crim. App. 2018)
(citing Jackson v. Virginia, 443 U.S. 307, 319 (1979); Villa v. State, 514 S.W.3d
227, 232 (Tex. Crim. App. 2017)). This standard requires the appellate court to defer
“to the responsibility of the trier of fact fairly to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” Id. (quoting Jackson, 443 U.S. at 319). We may not re-weigh the evidence
or substitute our judgment for that of the factfinder. Id. (citing Williams v. State,
–4– 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)). The court conducting a sufficiency
review must not engage in a “divide and conquer” strategy but must consider the
cumulative force of all the evidence. Id. at 733 (quoting Villa, 514 S.W.3d at 232).
Although juries may not speculate about the meaning of facts or evidence, juries are
permitted to draw any reasonable inferences from the facts so long as each inference
is supported by the evidence presented at trial. Id. (citing Jackson, 443 U.S. at 319;
Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Hooper v. State, 214
S.W.3d 9, 16–17 (Tex. Crim. App. 2007)). We presume that the factfinder resolved
any conflicting inferences from the evidence in favor of the verdict, and we defer to
that resolution. Id. (citing Merritt v. State, 368 S.W.3d 516, 525 (Tex. Crim. App.
2012)). This is because the jurors are the exclusive judges of the facts, the credibility
of the witnesses, and the weight to be given to the testimony. Id. (citing Brooks v.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)). Direct evidence and
circumstantial evidence are equally probative, and circumstantial evidence alone
may be sufficient to uphold a conviction so long as the cumulative force of all the
incriminating circumstances is sufficient to support the conviction. Id. (citing
Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d
at 13).
We measure whether the evidence presented at trial was sufficient to support
a conviction by comparing it to “the elements of the offense as defined by the
hypothetically correct jury charge for the case.” Id. (quoting Malik v. State, 953
–5– S.W.2d 234, 240 (Tex. Crim. App. 1997)). The hypothetically correct jury charge
is one that “accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which
the defendant was tried.” Id. (quoting Malik, 953 S.W.2d at 240) (citing Daugherty
v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013)). The “law as authorized by
the indictment” includes the statutory elements of the offense and those elements as
modified by the indictment. Id. (quoting Daugherty, 387 S.W.3d at 665).
Appellant argues that although the defense of mistake-of-fact was not
included in the jury charge, the hypothetically correct jury charge in this case would
include a mistake-of-fact defense. We have previously rejected a similar argument.
In Raza v. State, we noted that, “A hypothetically correct jury charge includes only
the defensive issues applicable to the case that the defendant timely requests or
objects to the omission from the jury charge. No. 05-17-00066-CR, 2018 WL
1062451, at *4 (Tex. App.—Dallas Feb. 27, 2018, no pet.) (mem. op., not designated
for publication) (citing Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App.
2010); Posey v. State, 966 S.W.2d 57, 61–62 (Tex. Crim. App. 1998)). As appellant
later concedes in her third issue challenging the lack of mistake-of-fact defense
instruction in the jury charge, she did not ask to include an instruction on mistake-
of-fact defense, nor did she object to its omission. Therefore, the mistake-of-fact
defense is not to be considered in an evaluation of the sufficiency of the evidence to
–6– support appellant’s conviction for impersonating a security officer. See Raza, 2018
WL 1062451, at *4 (citing Cervantes v. State, No. 07–14–00391–CR, 2015 WL
3610543, at *2 (Tex. App.—Amarillo June 9, 2015, no pet.) (mem. op., not
designated for publication); Osborne v. State, No. 07–13–00156, 2015 WL 3463047,
at *3, (Tex. App.—Amarillo May 29 2015, pet. ref’d) (mem. op., not designated for
publication); Pruiett v. State, No. 05–12–00131–CR, 2013 WL 1277861, at *2 (Tex.
App.—Dallas Feb. 25, 2013, pet. ref’d) (mem. op., not designated for publication)).
A person commits the offense of impersonating a security officer if the person
“knowingly purports to exercise any function that requires licensure as a
noncommissioned security officer or a security officer commission.” TEX. OCC.
CODE § 1702.3875. An individual acts as a security officer if the individual is
employed by a security services contractor and employed to perform the duties of a
security guard. See id. § 1702.222. The Department of Public Safety of the State of
Texas issues commissions to certain security officers and regulates security officers.
See id. § 1702.004(a)(2),(5). “Security officer commission” means an authorization
issued by the department that entitles a security officer to carry a firearm. See id.
§ 1702.002(21). The Public Safety Commission determines the qualifications of
commissioned security officers. See id. § 1702.061(c). In order to be employed as
a noncommissioned security officer, an individual must obtain the appropriate
individual license. See id. § 1702.221(b)(1)(G). “A person acts knowingly, or with
knowledge, with respect to the nature of his conduct or to circumstances surrounding
–7– his conduct when he is aware of the nature of his conduct or that the circumstances
exist.” TEX. PEN. CODE § 6.03(b).
Appellant concedes she was performing the duties of a noncommissioned
security officer but urges that, at the time of the offense, she believed Hobbs had
submitted her application to work as a noncommissioned security officer and that
such application had been received and accepted on the date of the offense in the
indictment, March 31, 2019, so that on that date she was licensed to be employed as
a noncommissioned security officer. In support of her argument, she relies on her
trial testimony she had completed a 40-hour training course in December 2018, that
Hobbs submitted applications to the State on behalf of the security guards and that
he had done so on her behalf, so that her application was pending on the date of the
offense and she was waiting for the State to send her a pocket card showing she was
licensed.1 According to appellant, she was under the impression that she was
licensed and allowed to work as a noncommissioned officer on the date of the
offense. The record also contains the testimony of Detective Andrea Isom with the
Dallas Police Department, the lead investigator in the death of Willard, who
interviewed appellant as part of her investigation. Portions of that interview, both
video and audio, were played for the jury, as well. Detective Isom testified she asked
appellant if she had a noncommissioned license with her, and appellant answered
1 “The department shall issue a pocket card for each individual license holder under this chapter.” OCC. § 1702.232(a). –8– that she did and that it was active and current. The video confirms that inquiry and
response, as well as appellant’s statement that Hobbs had her license card.
However, the record also contains evidence contradicting the foregoing.
Appellant testified at trial that in November 2018, when she was considering
applying to work for Strike Force, she exchanged text messages with Hobbs about
the job qualifications to work as a security guard. Hobbs informed her that she
needed a “clean background.”2 Appellant asked whether a pending assault charge,
a misdemeanor, would “stop me from getting the job?” After asking about whether
the charge was currently pending and whether appellant knew if it will be dismissed,
Hobbs stated, “They will not let you carry a gun with pending charges” and that she
could work for him “until it’s dropped but I will have to pay you out of pocket” and
“under the table.” Appellant admitted during her testimony that she knew she was
“not supposed to get paid under the table.” Appellant also admitted that during her
deposition, which took place on January 22, 2020, she was asked whether she held
any licenses or certifications on the night of the offense, and she answered, “I was
in the—in the—on the verge of getting my—trying to send my information off to
TOPS to get my license.”
2 Applications for licensing include fees for a criminal history check fee. See OCC. § 1702.203(a)(7). “An applicant is not eligible for a license or security officer commission issued under this chapter if the check reveals that the applicant has committed an act that constitutes grounds for the denial of the license or commission.” See id. § 1702.282(a). “A license or security officer commission issued by the department is conditional on the department’s review of criminal history record information.” See id. § 1702.282(c). –9– We again note that we defer to the jury “to resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.” See Zuniga, 551 S.W.3d at 733 (quoting Jackson, 443 U.S. at 319)). Further,
we presume that the factfinder resolved any conflicting inferences from the evidence
in favor of the verdict, and we defer to that resolution. Id. (citing Merritt, 368
S.W.3d at 525). The jury could have found that appellant did not believe her
application had been submitted to the State by the date of the offense. Alternatively,
the jury could have found that, even if appellant believed it had been submitted,
appellant understood, based on Hobbs’ statements concerning the need for a “clean
background,” that the State would reject her application because of the pending
assault charge against her. Although she texted Hobbs that she would know by
December 12, 2018, whether the State would dismiss the charge, appellant presented
no evidence that the assault charge was actually dismissed by the date of the offense.
We conclude sufficient evidence supports appellant’s conviction for knowingly
purporting to exercise any function that requires licensure as a noncommissioned
security officer.
We overrule appellant’s first issue.
II. No Harmful Error in Admitting Extraneous Offense Evidence
In her second issue, appellant urges the trial court committed harmful error in
admitting evidence of extraneous offenses or bad acts during the guilt–innocence
phase of trial in violation of rules 402, 403, and 404(b) of the Texas Rules of
–10– Evidence. More specifically, appellant complains of the admission of evidence that
she was involved in the altercation with Willard, that she struck him with her
flashlight, that the other security guard Johnson was charged with assault of Willard,
and that Hobbs was charged with Willard’s murder.
Preservation of Complaint Raised on Appeal
Rule 33.1 of the Texas Rules of Appellate Procedure governs preservation of
error, and states, in part: “[T]he record must show that (1) the complaint was made
to the trial court by a timely request, objection, or motion that: (A) stated the grounds
for the ruling that the complaining party sought from the trial court with sufficient
specificity to make the trial court aware of the complaint, unless the specific grounds
were apparent from the context.” See TEX. R. APP. P. 33.1(a)(1). Error preservation
does not involve a hyper-technical or formalistic use of words or phrases; instead,
“[s]traight forward communication in plain English” is sufficient. Pena v. State, 285
S.W.3d 459, 463 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d
907, 908–09 (Tex. Crim. App. 1992)). To avoid forfeiting a complaint on appeal,
the party must “let the trial judge know what he wants, why he thinks he is entitled
to it, and to do so clearly enough for the judge to understand him at a time when the
judge is in the proper position to do something about it.” Id. at 464 (quoting
Lankston, 827 S.W.2d at 909). This gives the trial judge and the opposing party an
opportunity to correct the error. See id. Moreover, an objection must be made each
time inadmissible evidence is offered unless the complaining party obtains a running
–11– objection or obtains a ruling on his complaint in a hearing outside the presence of
the jury. Lopez v. State, 253 S.W.3d 680, 684 (Tex. Crim. App. 2008).
Whether a party’s particular complaint is preserved depends on whether the
complaint on appeal comports with the complaint made at trial. See Pena v. State,
285 S.W.3d at 464. In making this determination, we consider the context in which
the complaint was made and the parties’ shared understanding at that time. See id.
Prior to trial, defense counsel moved to limit evidence “that other people were
charged with crimes[,] that someone was shot[, and] that that same individual passed
away as a result of being shot.” Defense counsel urged such evidence was not
relevant and that the prejudice outweighed any probative value. See TEX. R. EVID.
402, 403. The trial court denied appellant’s objections, but granted defense
counsel’s request for a running objection to any such evidence. Thus, we conclude
appellant preserved her objections to the admission of evidence that other people
were charged with crimes, that someone was shot, and that that individual died from
that shooting as violating rules 402 and 403. As for her complaints regarding
evidence that she was involved in the altercation with Willard and that she struck
him with a flashlight, we note that she did not preserve any objection to that evidence
either as part of a running objection, in a hearing outside the presence of the jury, or
when such evidence was offered at trial.
–12– As for her complaint regarding rule 404(b),3 we note that she filed a motion
in limine to exclude any questioning or mention of “the fact that the Defendant
herein may have engaged in any extraneous offense, wrong or act before, during or
after the commission of the offense alleged in the indictment” until after a hearing
on the admissibility of such evidence had taken place. However, “a preliminary
ruling on a motion in limine does not preserve error in the admission or exclusion of
evidence.” Geuder v. State, 115 S.W.3d 11, 14 n.9 (Tex. Crim. App. 2003). Nor
does the record reveal that appellant raised any objection under rule 404(b) to that
evidence later at trial.4 Accordingly, we conclude she failed to preserve any
objection under rule 404(b).
We will now review the trial court’s decision to admit or exclude evidence
that other people were charged with crimes, that someone was shot, and that that
individual died from that shooting. We review this decision under an abuse of
discretion standard. De La Garza v. State, No. 05-09-00854-CR, 2011 WL 768872,
at *1 (Tex. App.—Dallas Mar. 7, 2011, no pet.) (not designated for publication)
(citing Casey v. State, 215 S.W.3d 870, 879 (Tex. Crim. App. 2007)). We reverse
only when the judge’s decision was so clearly wrong as to lie outside the zone of
3 Rule 404(b) prohibits “[e]vidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” See TEX. R. EVID. 404(b)(1). 4 Appellant objected to the evidence that she had a pending misdemeanor assault charge, which was raised during discussion of her text messages with Hobbs prior to her employment with Strike Force. She does not argue admission of that evidence was erroneous on appeal, however. –13– reasonable disagreement, and we uphold the ruling if it was correct on any theory
reasonably supported by the evidence and applicable to the case. See id. (citing
Laney v. State, 117 S.W.3d 854, 857 (Tex. Crim. App. 2003); Willover v. State, 70
S.W.3d 841, 845 (Tex. Crim. App. 2002)). This is so even if the trial judge gives
the wrong reason for the decision. See id. (citing Laney, 117 S.W.3d at 857). We
review the trial court’s evidentiary ruling in light of the evidence that was before the
trial court at the time the ruling was made. See id. (citing Weatherred v. State, 15
S.W.3d 540, 542 (Tex. Crim. App. 2000)).
Analysis
Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence
in determining the action. TEX. R. EVID. 401. Irrelevant evidence is inadmissible.
TEX. R. EVID. 402. The court may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence. TEX. R. EVID. 403.
Appellant urges that evidence that other people were charged with crimes, that
someone was shot, and that that individual died from that shooting was not necessary
to establish evidence of the offense for which she was on trial: “knowingly
purport[ing] to exercise any function that requires licensure as a noncommissioned
–14– security officer or a security officer commission.” See OCC. § 1702.3875. More
specifically, she complains of the prosecutor’s opening statement:
Now, we are here because of a murder. The fact that we know that Ashley Nicole Wilson was not a noncommissioned—a licensed noncommissioned officer in the state of Texas is because of a murder investigation.
Now, we’re not litigating the facts of the murder here today. We’re primarily going to be concerned with what Ashley Nicole Wilson was doing on the night that this murder took place.
That being said, you’re going to hear evidence that talks about the murder.
Appellant also complains of certain testimony of Detective Isom, the lead
investigator in the death of Willard, who interviewed appellant as part of her
investigation. Portions of that interview were played for the jury, as well. During
the State’s examination of Detective Isom, the prosecutor stated that Hobbs was
arrested for the murder of Willard and questioned the detective about appellant’s
statements in the interview video, in particular appellant’s actions in searching for
and attempting to restrain Willard, as well as Hobbs’ shooting and killing of Willard.
In the video played for the jury, the detective questioned appellant about the events
of that night, beginning with Willard’s assault of her and continuing with appellant’s
and Hobbs’ interactions with Willard, including Hobbs’ shooting of Willard.
Additionally, near the conclusion of the video interview, the detective informed
appellant that Willard had later died and that Hobbs was being charged with
Willard’s murder.
–15– Assuming without deciding the trial court erred by admitting the complained-
of portions of the prosecutor’s opening statement and questions, Detective Isom’s
testimony, and appellant’s video statements, we conclude any error is harmless. The
erroneous admission of evidence is non-constitutional error. Foster v. State, 525
S.W.3d 898, 909 (Tex. App.—Dallas 2017, pet. ref’d) (citing Coble v. State, 330
S.W.3d 253, 280 (Tex. Crim. App. 2010)). Accordingly, any error must be
disregarded unless it affected appellant’s substantial rights. See TEX. R. APP. P.
44.2(b). Substantial rights are not affected if, after examining the record as a whole,
we have fair assurance that the error did not influence the jury or had but a slight
effect. Foster, 525 S.W.3d at 909 (Solomon v. State, 49 S.W.3d 356, 365 (Tex.
Crim. App. 2001)).
In assessing the likelihood the jury’s decision was adversely affected by the
error, we consider everything in the record, including any testimony or physical
evidence admitted for the jury’s consideration, the nature of the evidence supporting
the verdict, the character of the alleged error, and how the error might be considered
in connection with other evidence in the case. Foster, 525 S.W.3d at 909 (citing
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Schutz v. State, 63
S.W.3d 442, 444–45 (Tex. Crim. App. 2001)). We examine the entire trial record
and calculate, as much as possible, the probable impact of the error upon the rest of
the evidence. Foster, 525 S.W.3d at 909 (citing Coble, 330 S.W.3d at 280).
–16– We have examined the record and have a “fair assurance” the admission of
the preserved complained-of evidence did not influence the jury or had but a slight
effect. Appellant complains the admission of this evidence caused the jury to make
an emotional decision that was not based on the testimony and evidence concerning
the instant offense but instead on the improper basis of the alleged offenses of
aggravated assault and murder. But, as appellant appears to concede on appeal, the
evidence that she was “exercising any function that requires licensure as a
noncommissioned security officer or a security officer commission” was undisputed;
she disputed whether she knew she was not so licensed at the time of the alleged
offense. The evidence showed she was patrolling in a security guard car, wearing a
uniform that had “North Texas Strike Force,” her name, and a badge on the shoulder,
a utility belt with a gun holster, a flashlight, mace, and two sets of handcuffs.
Appellant was with Hobbs when Hobbs announced them to Willard as with Strike
Force. Thus, the only disputed evidence was whether appellant was knowingly
purporting to exercise any function that requires licensure as a noncommissioned
security officer. It is difficult to conclude how knowledge that Hobbs shot and killed
Willard and that he and Johnson were charged with murder and aggravated assault,
respectively, would affect a jury’s decision on whether appellant knew she was
–17– licensed to work as a security guard at the time of the offense. Accordingly, we
conclude any error did not affect the jury or had but slight effect on its verdict.5
We overrule appellant’s second issue.
III. No Error in Not Instructing Jury on Appellant’s Mistake-of-Fact Defense
In her third issue, appellant urges the trial court committed reversible error in
failing to instruct the jury on her mistake-of-fact defense.
“It is a defense to prosecution that the actor through mistake formed a
reasonable belief about a matter of fact if his mistaken belief negated the kind of
culpability required for commission of the offense.” TEX. PENAL CODE § 8.02(a).
Thus, this defense applies when the defendant’s mistaken belief, if accepted as true,
negates the culpable mental state for the crime charged. Guyger v. State, No. 05-19-
01236-CR, 2021 WL 5356043, at *4 (Tex. App.—Dallas Nov. 17, 2021, pet. ref’d)
(not designated for publication) (citing Granger v. State, 3 S.W.3d 36, 41 (Tex.
Crim. App. 1999)).
Appellant acknowledges she did not request an instruction on mistake of
fact—nor did defense counsel object to any such omission, but she argues the trial
court should have sua sponte provided an instruction to the jury based upon the facts
and evidence that she presented at trial. The State responds that mistake of fact is a
5 As for the sentence, any error in admitting the complained-of evidence could not have affected the jury because she elected to be sentenced by the trial judge. –18– defense that must be requested to be included in the charge. See Thomas v. State,
236 S.W.3d 787, 800 (Tex. Crim. App. 2007). We agree with the State.
A defendant cannot complain on appeal about the trial judge’s failure to
include a defensive instruction that he did not preserve by request or objection: he
has procedurally defaulted any such complaint. Turner v. State, 626 S.W.3d 88, 100
(Tex. App.—Dallas 2021, no pet.) (citing Vega v. State, 394 S.W.3d 514, 519 (Tex.
Crim. App. 2013); Posey v. State, 966 S.W.2d 57, 61 (Tex. Crim. App. 1998)); see
also Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018) (noting the Posey
court said Article 36.14 of Texas Code of Criminal Procedure imposes no “duty on
trial courts to sua sponte instruct the jury on unrequested defensive issues” such as
mistake of fact).
Because appellant failed to preserve her complaint, we overrule appellant’s
third issue.
MODIFICATION OF THE JUDGMENT
In a single cross-issue, the State requests that this Court modify the judgment
to correct the name of the attorney for the State. The record reflects that Patrick
Capetillo appeared at trial on behalf of the State, but the judgment lists as “Attorney
for State: Omoniyi Olayiwola.” We may modify a trial court’s written judgment if
the necessary information to do so is contained in the record. TEX. R. APP. P.
43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993); Asberry v.
State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d). Accordingly,
–19– we modify the judgment to delete “Omoniyi Olayiwola” and insert “Patrick
Capetillo” as “Attorney for State.”
CONCLUSION
We modify the judgment to delete “Omoniyi Olayiwola” and insert “Patrick
Capetillo” as “Attorney for State.” We affirm the judgment as so modified.
/Nancy Kennedy/ NANCY KENNEDY JUSTICE
DO NOT PUBLISH TEX. R. APP. P. 47 230119F.U05
–20– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT
ASHLEY NICOLE WILSON, On Appeal from the County Criminal Appellant Court No. 8, Dallas County, Texas Trial Court Cause No. MA19-04281- No. 05-23-00119-CR V. J. Opinion delivered by Justice THE STATE OF TEXAS, Appellee Kennedy. Justices Molberg and Nowell participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows: We modify the judgment to delete “Omoniyi Olayiwola” and insert “Patrick Capetillo” as “Attorney for State.”
As REFORMED, the judgment is AFFIRMED.
Judgment entered this 20th day of May, 2024
–21–