Jimmy Coung Duc Tran v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 20, 2025
• Docket: 13-23-00190-CR
• Status: Published

Opinion

NUMBER 13-23-00190-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JIMMY COUNG DUC TRAN, Appellant,

v.

THE STATE OF TEXAS, Appellee.

ON APPEAL FROM THE 186TH DISTRICT COURT OF BEXAR COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina and Justices Peña and Cron1 Memorandum Opinion by Chief Justice Tijerina

A jury convicted appellant Jimmy Coung Duc Tran of capital murder, and the trial

court sentenced him to life imprisonment without the possibility of parole. See TEX. PENAL

1 The Honorable Nora L. Longoria, former Justice of this Court, did not participate in this opinion

because her term of office expired on December 31, 2024. In accordance with the appellate rules, she was replaced on panel by Justice Jenny Cron. See TEX. R. APP. P. 41.1(a). CODE ANN. § 19.03. By nine issues (and several sub-issues), Tran argues: (1) the trial

court’s admission of his cell phone records deprived him of his right to be free from

unreasonable searches; (2) his custodial statement should have been suppressed based

on an invalid waiver of Miranda; (3) the trial judge should have recused himself because

he was partial and biased; (4) the trial court abused its discretion by denying Tran’s motion

for continuance because Tran was unable to cross-examine Detective Mark Duke and

conduct an independent investigation; (5) the evidence is insufficient to convict him of

capital murder because there was no evidence to refute his affirmative defense (defense

of property) beyond a reasonable doubt; (6) the trial could should not have permitted

Detective Duke to testify as an expert because he lacked expertise, and Tran was

improperly prevented from conducting voir dire to challenge the basis of Detective Duke’s

testimony; (7) the trial court improperly prevented Tran from impeaching an eyewitness

as to bias in favor of the State; (8) the trial court failed to include a jury instruction on the

voluntariness of his custodial interrogation; and (9) the State engaged in repeated

improper argument throughout the course of trial. We affirm.

I. BACKGROUND2

The State indicted Tran with capital murder for the death of Andres Salinas. See

id. The indictment alleged that Tran intentionally caused Salinas’s death by shooting him

2 This case is before this Court on transfer from the Fourth Court of Appeals in San Antonio

pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.

2 with a firearm while in the course of committing or attempting to commit the offense of

robbery. See id. The following facts were produced at trial.

Sebastian Espinar testified that he was a codefendant in this case, and he pleaded

guilty to murder in exchange for a twenty-five-year sentence. He testified that on August

12, 2019, he started his day by taking Xanax because he “likes getting high. That was

[his] thing.” 3 Because he was “extremely intoxicated” on Xanax and marijuana, he

contacted Tran and asked Tran to drive Espinar’s car to engage in a drug deal. According

to Espinar, Salinas previously sold him “fake pills that had dangerous things in them,” so

he did not want Salinas to think it was okay to hoodwink him. For this reason, Espinar

sought revenge by robbing Salinas, and he shared this plan with Tran. Espinar stated that

Tran “supported” him, agreed to drive him, and brought an AR rifle, a Smith & Wesson

9mm, and cash for the encounter with Salinas. Espinar testified that he “instructed [Tran]

to leave the car in neutral so that when [he] was handed the pills, [Tran] could shift . . . into

drive and just leave.”

Tran drove Espinar in Espinar’s car to Wingstop, where Salinas was employed.

They parked behind the Wingstop in an alley and waited for Salinas. Their plan was to

display Tran’s “money openly” so that Salinas “would just hand over the pills without any

consequence.” Tran’s rifle was beside his leg on the driver side while the pistol was under

Espinar’s right leg on the passenger side. The money was stacked on Espinar’s lap.

3 Espinar testified that Xanax “leaves holes in [his] memory,” impairs him physically, makes it difficult for him to use his hands and legs, causes his balance to be off, and makes him “really sleepy.” He takes about three to four pills a day so that he consistently feels these effects throughout the day.

3 Espinar reiterated: “My plan originally was for . . . Salinas to see the money and feel

comfortable handing me the pills, and then for [Tran] to shift into drive and drive away.”

When Salinas approached the vehicle, Salinas gave Espinar the pill bottle. Espinar

glanced at Tran who “seemed to have forgotten what we discussed,” so Espinar displayed

the pistol, and, in an effort to stall, Espinar instructed Salinas to go back inside to work.

Salinas appeared to be confused, reached into the car, grabbed the money on Espinar’s

lap, and started running. Tran then yelled, “Oh, fu[**], my money!”

Espinar clarified that Salinas did not have a knife, did not display a weapon, did

not hit him, and did not use any force against him. Espinar explained that he was scared,

so when Tran told him to exit the vehicle and shoot, he did. Espinar clarified that Tran

shot the first round and that Espinar “shot multiple rounds into the air, way

above . . . Salinas.” Espinar then entered the vehicle, sat down, and witnessed Tran

“aiming the gun and shooting two more shots before [Tran] entered the vehicle and drove

away.” According to Espinar, Tran had “his left shoulder leaning against the area where

the door handle is, and he’s leaning into his gun and looking into the scope” while he was

hunched over. Tran had “one foot still in the car” with a very “focused face.” Espinar stated

that Tran shot for about three to five seconds more, reentered the car, and sped off. As

Tran drove away, Espinar claimed that he looked into the rearview mirror and observed

Salinas still running away, so he believed that Salinas was not hurt.

After the shooting, Espinar claimed that they drove off into a neighborhood, but he

had no recollection of the events that transpired because he chewed two to three Xanax

4 pills he had just stolen from Salinas. After he woke up, the sun was down, and he and

Tran were somewhere that looked to be a trailer park. According to Espinar, Tran was

attempting to get rid of the weapons. The two headed back to Espinar’s apartment where

Espinar took more Xanax, and Tran stashed the two guns. At that point, Tran showed him

a news article announcing Salinas’s death.

The next day, Tran asked Espinar for his money, so Espinar took out a loan for

$800 and repaid Tran. Tran requested pictures of the guns so that he could “get rid of

them,” and Espinar sent him the photos. Thereafter, Tran and Espinar ceased

communication.

Jay Dolan testified that he was homeless and was “hanging out” in the alley when

he saw Salinas walk up to the passenger side of Espinar’s car. Dolan stated: “I seen [sic]

the guy from Wingstop running back towards his job, and then gunshots—boom, boom.”

According to Dolan, he was only fifteen yards away from this encounter. After the

shooting, “[t]he driver jumped in the car and sped away.”

Dolan stated there did not appear to be any prior disturbance. Dolan remembers

the driver (Tran) was short, stocky, dark with a flat-top hairstyle while the passenger

(Espinar) was tall and thin. Dolan clarified that both Espinar and Tran were shooting at

Salinas. Dolan witnessed Tran holding a rifle that “had a thick part where the bullet c[a]me

out of the muzzle . . . and a short stock.” Espinar held a gray handgun.

5 The medical examiner testified that Tran died from a single gunshot wound to the

back. Because there was “so much excess” force, Salinas’s wounds were consistent with

the use of a high velocity rifle.

Following other testimony from other witnesses, the jury convicted Tran and

sentenced him as stated above. This appeal followed.

II. LEGAL SUFFICIENCY4

By his fifth issue, Tran argues that the evidence is legally insufficient to support the

jury’s rejection of his defense of property affirmative defense.

A. Standard of Review

In evaluating the legal sufficiency of the evidence, “we consider all the evidence in

the light most favorable to the verdict and determine whether, based on that evidence

and reasonable inferences therefrom, a rational juror could have found the essential

elements of the crime beyond a reasonable doubt.” Hooper v. State, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). “Viewing the evidence ‘in the light most favorable to the verdict’

under a legal-sufficiency standard means that the reviewing court is required to defer to

the jury’s credibility and weight determinations because the jury is the sole judge of the

witnesses’ credibility and the weight to be given their testimony.” Brooks v. State, 323

S.W.3d 893, 899 (Tex. Crim. App. 2010) (plurality op.). The jury can choose to believe

all, some or none of the testimony presented by the parties. Chambers v. State, 805

4 We first address issues that would afford a party greater relief before reaching issues affording

lesser relief. Benavidez v. State, 323 S.W.3d 179, 182 (Tex. Crim. App. 2010).

6 S.W.3d 459, 461 (Tex. Crim. App. 1991). An appellate court may not re-evaluate the

weight and the credibility of the evidence or substitute its judgment for that of the

factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

Circumstantial evidence is as probative as direct evidence, and it can be sufficient

alone in establishing guilt. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). “Each fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative force of

all the incriminating circumstances is sufficient to support the conviction.” Hooper, 214

S.W.3d at 13.

B. Applicable Law

Defense of property is a justification defense. See TEX. PENAL CODE ANN. § 9.41(b).

Under § 9.41(b), a person unlawfully dispossessed of tangible, movable property by

another is justified in using force against the other when the actor reasonably believes

the force is immediately necessary to recover the property if the actor uses the force

immediately or in fresh pursuit after the dispossession and the actor reasonably believes

the other had no claim of right. Id.

Section 9.42 provides that a person is justified in using deadly force to protect

property if he would be justified in using force against the other under § 9.41 and when

and to the degree he reasonably believes the deadly force is immediately necessary:

(1) to prevent the other’s imminent commission of robbery, aggravated robbery, or theft

during the nighttime or (2) to prevent the other who is fleeing immediately after committing

7 robbery, aggravated robbery, or theft during the nighttime from escaping with the

property; and (3) he reasonably believes that the property cannot be recovered by any

other means, or the use of force other than deadly force to protect or recover the property

would expose the actor or another to a substantial risk of death or serious bodily injury.

Id. § 9.42. The Penal Code defines “reasonable belief” as “a belief that would be held by

an ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(a)(42).

A defendant bears the initial burden of production regarding a defensive theory.

See Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). This requires the

defendant to produce some evidence that supports the particular defense. Id. Once the

defendant meets this burden by producing some evidence, the State then bears the

burden of persuasion to disprove the raised defense. Id.; Saxton v. State, 804 S.W.2d

910, 913 (Tex. Crim. App. 2001). The burden of persuasion is not one that requires the

production of evidence, so the State is not required to affirmatively produce evidence

refuting the defensive claim. Saxton, 804 S.W.2d at 913. Instead, the State is required

only to prove its case beyond a reasonable doubt. Zuliani, 97 S.W.3d at 594; Saxton, 804

S.W.2d at 913. When the defendant is found guilty, there is an implicit finding against the

defensive theory. Zuliani, 97 S.W.3d at 594; Saxton, 804 S.W.2d at 914.

C. Analysis

Here, Espinar testified that he and Tran had organized a plan to rob Salinas, and

Tran gathered two firearms in preparation of the drug transaction. After Salinas realized

that Espinar would not pay him for the Xanax, he reached into the vehicle and grabbed

8 Tran’s money. Tran yelled, “Oh, fu[**], my money!” stepped out of the vehicle, instructed

Espinar to shoot, and the two began shooting at Salinas. Espinar stated that after he fired

shots “in the air,” he entered the vehicle while Tran stayed outside and fired more shots.

Espinar observed Tran leaning his shoulder against the car door, pointing his rifle at

Salinas, looking into the rifle’s scope, and firing shots at Salinas with a “focused face.”

Thereafter, Tran and Espinar fled the scene without Tran’s wad of cash. See Clayton,

235 S.W.3d at 780 (noting that a “factfinder may draw an inference of guilt from the

circumstance of flight”); see also Kirk v. State, 421 S.W.3d 772, 781 (Tex. App.—Fort

Worth 2014, pet. ref’d) (referencing flight from scene as evidence jury could consider in

rejecting self-defense claim). Further, Espinar’s version of events is consistent with the

testimony of Dolan, who was a bystander and not a party to the drug transaction. Finally,

the medical examiner testified that Salinas only had one gunshot wound—from a high

velocity rifle—which was fatal and entered through his back.

Viewing these facts in the light most favorable to the verdict, the jury could have

rejected Tran’s protection-of-property defense for several reasons. Here, Tran and

Espinar planned to rob Salinas; thus, Tran could not have reasonably believed that deadly

force was immediately necessary to prevent the commission of robbery. See TEX. PENAL

CODE ANN. 9.42(2)(a). Furthermore, Salinas did not display a weapon, did not use deadly

force, did not harm Espinar or Tran, was running away from Tran and Espinar, and was

shot in the back. See id. § 9.41(b)(2). Lastly, Tran stepped out of his vehicle, instructed

Espinar to shoot, and fired shots in Salinas’s direction. Therefore, Tran could not have

9 reasonably believed that deadly force was necessary to protect himself from a substantial

risk of death. See id. § 9.42(3)(B); Sparks v. State, 177 S.W.3d 127, 132–33 (Tex. App.—

Houston [1st Dist.] 2005, no pet.) (“The trial court did not err, therefore, by denying the

defense-of-property instruction concerning Lauren, who, by appellant’s own testimony

was assisting him and not attacking or robbing him when appellant acted to defend his

property). Finally, even if Tran could show the elements of § 9.41, the evidence also

established that the incident occurred during daytime—not nighttime, as required for the

use of deadly force in the protection of property. See id. § 9.42(2)(A)–(B). Having

reviewed all of the evidence in the light most favorable to the State, we conclude the jury

rationally could have found each element of the offense was proven beyond a reasonable

doubt, and rationally could have rejected Tran’s defense of property claim. See id. We

overrule his fifth issue.

III. MOTION TO SUPPRESS

By his first issue, Tran argues that the trial court should have granted his motion

to suppress, and the trial court’s admission of his cell phone records deprived Tran of his

right to be free from unreasonable searches.

We review a trial court’s ruling on a motion to suppress under a bifurcated standard

of review. State v. Martinez, 570 S.W.3d 278, 281 (Tex. Crim. App. 2019); Valtierra v.

State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We afford almost total deference to

the trial court’s findings of historical facts as well as mixed questions of law and fact that

10 turn on an evaluation of credibility and demeanor. Abney v. State, 394 S.W.3d 542, 547

(Tex. Crim. App. 2013). “The trial [court] is the sole judge of witness credibility and the

weight to be given to witness testimony.” Chumacero v. State, 676 S.W.3d 878, 891 (Tex.

App.—Corpus Christi–Edinburg 2023, pet. ref’d); Ex parte Moore, 395 S.W.3d 152, 158

(Tex. Crim. App. 2013). We review de novo the trial court’s application of the law to the

facts. Valtierra, 310 S.W.3d at 447.

We view the evidence in the light most favorable to the trial court’s ruling by

considering “the strongest legitimate view of the evidence and all reasonable inferences

that may be drawn from that evidence.” State v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex.

Crim. App. 2008). The trial court’s ruling will be upheld if it is supported by the record and

correct under any theory of law applicable to the case. Young v. State, 283 S.W.3d 854,

873 (Tex. Crim. App. 2009).

B. Search Warrant

By a sub-issue to his first issue, Tran argues the search warrant lacked probable

cause because “there are no facts alleged in the affidavit that tie the offense to the use of

a cellular phone, as noted by the [t]rial [c]ourt and acquiesced to by the State.”

1. Applicable Law

A magistrate may not issue a search warrant unless it is based on probable cause

as determined from the four corners of the affidavit. State v. Elrod, 538 S.W.3d 551, 556

(Tex. Crim. App. 2017); Gonzales v. State, 481 S.W.3d 300, 306 (Tex. App.—San Antonio

2015, no pet.). “The four corners of an affidavit supporting a search warrant are sufficient

11 if, from the totality of circumstances reflected in the affidavit, the magistrate was provided

with a substantial basis for concluding that probable cause existed.” Gonzales, 481

S.W.3d at 306. “Probable cause for a search warrant exists if, under the totality of

circumstances presented to the magistrate in an affidavit, there is at least a ‘fair

probability’ or ‘substantial chance’ that evidence of a crime will be found.” Id. “[I]n

interpreting affidavits for search warrants courts must do so in a common sense and

realistic manner.” Elrod, 538 S.W.3d at 556 (internal quotation omitted). “A magistrate, in

assessing probable cause, may draw inferences from the facts.” Id. “Therefore, although

the magistrate’s determination of probable cause must be based on the facts contained

within the four corners of the affidavit, the magistrate may use logic and common sense

to make inferences based on those facts.” Id.

We give great deference to a magistrate’s decision to issue a warrant. Id. at 556–

57; Gonzales, 481 S.W.3d at 306. “[W]here [the underlying] circumstances are detailed,

where reason for crediting the source of the information is given, and when a magistrate

has found probable cause, the courts should not invalidate the warrant by interpreting the

affidavit in a hypertechnical, rather than a commonsense, manner.” Gonzales, 481

S.W.3d at 306.

2. Relevant Facts

On August 26, 2019, Detective Duke from the San Antonio Police Department

(SAPD) applied for and received a search warrant for Tran’s cell phone. On May 12, 2021,

Detective Duke applied for a second search warrant for Tran’s cell phone and received a

12 subsequent search warrant. The subsequent warrant was based on additional

information, and, according to the State, a subsequent search was done. Detective Duke

included the following information in his probable cause affidavit:

• Salinas was found dead with a cell phone in his possession;

• Espinar admitted to using a cell phone at the time of the murder;

• Tran was in possession of a cell phone at the time of his arrest that is believed to be the same device he was using and on the night of the murder;

• Espinar informed police that there was communication between himself and Tran before and after the murder;

• contents in Tran’s phone would corroborate Espinar’s confession that he and Tran were the perpetrators;

• Espinar informed police that Tran had been looking to secrete the murder weapon;

• a search of Tran’s phone will reveal information, pictures, and data of Tran’s attempts to sell the murder weapon;

• information of Tran’s phone would reveal his participation in the murder and potentially identify others who may be potential witnesses to Tran’s attempts to secrete the weapon;

• Espinar admitted he had communication with Tran in the days following the murder and hours before in the form of text messages, social media communication, and voice chats in Tran’s phone.

On March 23, 2023, Tran filed a motion to suppress, arguing the language in

Detective Duke’s original affidavit (August 26, 2019) is unrelated to Tran’s cell phone and

is thus insufficient to establish probable cause. However, at the motion to suppress

hearing, both parties relied on the subsequent May 2021 warrant only, which the trial

13 court referred to as the “curative warrant.” The trial court did not review the original

warrant, and the parties did not provide any argument regarding the original warrant.

Instead, Tran argued that the curative warrant lacked language that affirmatively placed

Tran with a cell phone at the scene pursuant to Baldwin v. State. See 664 S.W.3d 122,

132 (Tex. Crim. App. 2022). Based on the probable cause affidavit attached to the

application for the curative warrant and after reviewing the facts in Baldwin, the trial court

found that Detective Duke gave particularized facts to establish probable cause and a

nexus between Tran’s cell phone and the crime, and it denied Tran’s motion to suppress.

Incriminating information from Tran’s cell phone was admitted into evidence, including a

GPS reading that put Tran at the location of the murder at the time of the shooting,

numerous incriminating text messages to and from Tran regarding his involvement in the

shooting, and numerous text messages to and from Tran regarding selling and ridding

himself of the firearms.5

3. Analysis

On appeal, Tran argues that the original warrant did not establish a nexus between

the offense and the place to be searched. However, at the motion to suppress hearing,

at dispute was the validity of the curative warrant and the cell phone evidence obtained

pursuant to that warrant. That is, Tran did not address or raise any arguments related to

the original warrant. See TEX. R. APP. P. 33.1. Furthermore, the trial court only reviewed

5 Some of these messages include Tran allegedly stating the following: “I lost a rack today”; “The

[explicative] died for that shit”; “Dog, I got in a crazy shooting earlier. I need to lay low. Somewhere I can stay at your spot”; and “Babe, I made the news,” among others.

14 the curative warrant, and Tran does not argue that the trial court erred in this regard. See

TEX. R. APP. P. 38.1(i). Accordingly, we only address the curative warrant in our analysis.

See Bekendam v. State, 441 S.W.3d 295, 300 (Tex. Crim. App. 2014) (“[T]he point of

error on appeal must comport with the objection made at trial.”).

At the suppression hearing, Tran argued the curative warrant was based on

boilerplate language, which he argues is insufficient under Baldwin. See id. It is

undisputed that the subsequent probable cause affidavit contained general boilerplate

language. However, “the use of boilerplate language in affidavits for warrants to search

mobile phones” is consistent with the code of criminal procedure “so long as the generic

language is coupled with ‘other facts.’” Id. at 134. In this case, the probable cause affidavit

contained specific facts connecting Tran’s cell phone to the murder. Specifically, in his

affidavit, Detective Duke stated that Espinar informed law enforcement that he

communicated with Tran before and after the murder; that these communications would

corroborate Espinar’s confession that he and Tran were the perpetrators; that Espinar

told law enforcement Tran was trying to “get rid” of the weapon by selling it and Tran’s

phone would reveal pictures and communications of his attempts; that Espinar admitted

to communicating with Tran days following the murder and the hours just before; and that

such data is in the form of text messages, social media communication, and voice chat,

which can be found on Tran’s phone.

We conclude the aforementioned “particularized facts demonstrate[] a fair

probability that evidence relating to the offense would be located in the mobile phone.” Id.

15 at 132. In other words, these facts tie Tran’s cell phone to the offense and specifically

explain how Tran’s phone was used before and after the offense to communicate with

Espinar, including trying to sell the weapons used to commit the murder. See id.

Therefore, we conclude the affidavit sets forth details in sufficient facts to establish

probable cause in accordance with the standards in Baldwin. We overrule Tran’s first sub-

issue.6

C. Miranda

By his second sub-issue, Tran argues that he did not voluntarily waive his rights

when he was interrogated by Detective Duke because Detective Duke did not “elicit a

waiver from Tran before launching into his first question” and used “deceptive statements

during the interrogation.”

Under Miranda, prior to any questioning, the person must be warned that he has

a right to remain silent, that any statement he does make may be used as evidence

against him, and that he has a right to the presence of an attorney. See Miranda v.

6 For the first time on appeal, Tran argues that even if the curative warrant was sufficient to establish probable cause, the evidence must be suppressed as fruit of the poisonous tree because police never “re-extracted the data from the phone based on a second search warrant.” However, Tran did not raise this argument in the trial court and thereby waived this claim for appellate review. See Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015) (finding that appellant did not preserve his constitutional Fourth Amendment arguments because in the trial court appellant limited his motion to suppress and argument in support of his motion to statutory violation allegations and did not raise constitutional violations); see also Moser v. State, No. 04-13-00826-CR, 2016 WL 5399645, at *5 (Tex. App.—San Antonio Sept. 28, 2016, pet. ref’d) (mem. op., not designated for publication) (“[I]n applying Douds to the facts of this case, we are constrained to hold that Moser did not preserve his first point of error for appellate review.”). Notwithstanding, the trial court confirmed that the State was relying on evidence procured based on the subsequent warrant, and the trial court clarified that its ruling was based on the subsequent warrant.

16 Arizona, 384 U.S. 463, 444 (1966); see also Rodriguez v. State, No. 13-19-00498-CR,

2020 WL 6072622, at *3 (Tex. App.—Corpus Christi–Edinburg Sept. 24, 2020, no pet.)

(mem. op., not designated for publication). The code of criminal procedure further

establishes procedural safeguards against self-incrimination. Joseph v. State, 309

S.W.3d 20, 23 (Tex. Crim. App. 2010) (citing TEX. CODE CRIM. PROC. ANN. art. 38.22).

“Before an oral recorded statement may be admitted into evidence, the State must show

‘prior to the statement but during the recording the accused is given the warning in

Subsection (a) of Section 2 above and the accused knowingly, intelligently, and voluntarily

waives any rights set out in the warning.’” Leza v. State, 351 S.W.3d 344, 351 (Tex. Crim.

App. 2011) (citing TEX. CODE CRIM. PROC. ANN. art. 38.22 § 3). We use the totality of the

circumstances to determine whether appellant waived his rights knowingly, intelligently,

and voluntarily. Joseph, 309 S.W.3d at 25.

The State has the burden to prove a valid waiver of Miranda rights by a

preponderance of the evidence. Leza, 351 S.W.3d at 349. Two steps are required for a

valid waiver: (1) the waiver must be voluntary, meaning that it was the product of a free

and deliberate choice rather than intimidation, coercion, or deception, and (2) the waiver

must be made with full awareness of both the nature of the right being abandoned and

the consequences of the decision to abandon it. Id.

The trial court held a hearing where Tran’s custodial interrogation was admitted

into evidence. In the video, Detective Duke first transitioned Tran’s handcuffs from the

17 back to the front. He tells Tran several things before the interrogation: he knows there are

two sides to every story; there are missing details that need to be brought out; cases are

never clear-cut, there may be some reasons why things went down the way they did; he

spoke to Espinar; he has video of the incident; Tran would find things interesting; and

Tran would be provided with the opportunity to explain why things happened the way they

did. Tran then requested some water, and Detective Duke complied.

Detective Duke stated that before Tran is asked any questions, he must advise

Tran of his rights and to warn him of the consequences of waiving his rights. Detective

Duke read Tran the required Miranda warnings and informed Tran that he had the right

to terminate the interview at any time. Detective Duke asked Tran if he understood, and

Tran shook his head affirmatively, and faintly stated, “Yeah.” Detective Duke inquired

whether Tran was feeling nervous. Tran responded, “Not at all” and added that his body

was adjusting to the “nasty food” he is being served in jail. Tran then stated, “You may

continue.” Tran then denied knowing Espinar and denied ever communicating with him.

The trial court denied the motion to suppress and made the following findings and

conclusions: based on the totality of the circumstances, it could infer that Tran understood

his Miranda warnings and chose to waive them based on his words and actions; the

answers to the questions were a free and deliberate choice, were not the result of

intimidation, coercion or deception, and were out of his free will; Tran showed full

awareness of his rights and the consequences of those rights; Tran’s words, “You can

continue” and his continued answers to the questions posed by Detective Duke showed

18 a knowing and voluntary waiver of those rights; Tran continued the interrogation and did

not terminate the interview; Tran did not show he was acting under any level of coercion;

and Tran displayed the requisite level of comprehension. See Alford v. State, 358 S.W.3d

647, 652 n.6 (Tex. Crim. App. 2012) (observing that Article 38.22 findings need not be

made with “minute specificity” but must be sufficiently detailed to provide a basis on which

to review the trial court’s application of law to facts). The trial court thereafter redacted

several portions of the interrogation based on relevancy, and it was admitted into

evidence.

Before interrogating Tran, Detective Duke recited the Miranda rights by reading off

a statement verbatim. See Miranda, 384 U.S. at 444, TEX. CODE CRIM. PROC. ANN. art.

38.22, § 2. When Detective Duke asked if Tran understood his rights, Tran affirmatively

indicated he understood and whispered, “Yeah.” After confirming that he did not feel ill,

Tran initiated the interrogation by asking Detective Duke to proceed with the interview:

“You may continue.” See Umana v. State, 447 S.W.3d 346, 356 (Tex. App.—Houston

[14th Dist.] 2014, pet. ref’d) (“The recording of the oral statement shows Varela read

appellant his rights and asked, ‘Do you understand all your rights?’ Appellant nodded his

head up and down and stated, ‘Uh-huh.’ Thus[,] the record shows the warnings were

given and appellant affirmatively indicated that he understood those warnings.”); see also

Crawford v. State, 648 S.W.3d 461, 464 (Tex. App.—San Antonio 2021, no pet.) (“When

Crawford reinitiated the conversation, Crawford voluntarily waived any right. . . . The

19 statements provided by Crawford after these circumstances were not subject to

suppression under the Fifth Amendment, and the trial court did not abuse its discretion

by denying Crawford’s motion to suppress.”). The video demonstrates that immediately

after being read his Miranda rights, Tran willingly participated in the interview, did not

request an attorney at any time, and did not terminate the interview at any time. See

Hernandez v. State, 387 S.W.3d 881, 885–86 (Tex. App.—San Antonio 2012, no pet.)

(“At no time did Hernandez ask to stop the interview or ask for counsel.”). Instead, Tran

explained that on the day of the murder, he was downtown with a friend giving out

sandwiches to homeless people because he gives back to his community. Tran explained

that he was a medical assistant student, and the “very reason why [he] chose to pursue

this career was to help save lives, not take them.” Tran steadfastly denied the murder

despite what others said about him, and “that was [his] story.” Thus, Tran participated in

the interview without confusion or complication, evincing that he understood what

Detective Duke was saying throughout the interview. See Joseph, 309 S.W.3d at 27.

Regarding coercion, Tran did not argue in his motion to suppress or at the motion

to suppress hearing that his statements were coerced. “Global statements” in a written

motion to suppress are not sufficient to preserve arguments for appeal. Swain v. State,

181 S.W.3d 359, 365 (Tex. Crim. App. 2005). A party waives error when (1) a suppression

motion makes global arguments citing little more than constitutional and statutory

provisions and (2) the party fails to argue any specific grounds for suppressing evidence

at the suppression hearing. Id. (holding party waives error when suppression motion

20 makes global arguments citing little more than constitutional and statutory provisions and

party fails to argue specific ground for suppressing evidence at suppression hearing); see

also Lugo v. State, 299 S.W.3d 445, 450 (Tex. App.—Fort Worth 2009, pet. ref’d) (“[T]he

complaint made on appeal must comport with the complaint made in the trial court or the

error is forfeited.”). Nonetheless, the record shows no evidence of intimidation or

coercion. See Hernandez, 387 S.W.3d at 886. Detective Duke did not promise Tran

anything, so there appears to be no possibility that a promise from police could have

jeopardized the voluntariness of appellant’s statement. See Joseph, 309 S.W.3d at 27.

We conclude Tran’s conduct demonstrated that he had the requisite level of

comprehension to waive his Miranda rights. See id. The totality of the circumstances

surrounding the interrogation shows Tran’s waiver was voluntary and resulted from a free

and deliberate choice without intimidation, coercion, or deception. See Leza, 351 S.W.3d

at 349. We overrule Tran’s second issue in its entirety.

IV. RECUSAL

By his third issue, Tran argues that the trial court abused its discretion when it

denied his motion to recuse.

A. Standard of Review & Applicable Law

“An appellate court reviews an order denying a motion to recuse under an abuse

of discretion standard.” Abdygapparova v. State, 243 S.W.3d 191, 197 (Tex. App.—San

Antonio 2007, pet. ref’d). “[T]his standard requires a determination that the court acted

without any guiding rules and principles, the trial court abuses its discretion only if the

21 ruling on the motion was not within the zone of reasonable disagreement.” Id. at 197‒98.

“[I]n the absence of a clear showing to the contrary, an appellate court presumes the trial

court was neutral and detached.” Id. at 198.

The party filing a motion to recuse bears the burden of proving recusal is warranted

and must satisfy a high threshold. Drake v. Walker, 529 S.W.3d 516, 528 (Tex. App.—

Dallas 2017, no pet.); see also In re B.W.C., No. 04-18-00473-CV, 2019 WL 360659, at

*2 (Tex. App.—San Antonio Jan. 30, 2019, no pet.) (mem. op.). “A judge must recuse in

any proceeding in which the judge’s impartiality might reasonably be questioned[.]” TEX.

R. CIV. P. 18b(b)(1). “The test for recusal is whether a reasonable member of the public

at large, knowing all the facts in the public domain concerning the judge’s conduct, would

have a reasonable doubt that the judge is actually impartial.” Drake, 529 S.W.3d at 528

(internal quotation omitted). In challenging a judge’s impartiality, “the [movant’s] burden

is met only through a showing of bias or impartiality to such an extent that the movant

was deprived of a fair trial.” Id.

B. Relevant Facts

On Friday, March 31, 2023, after the trial recessed for the day, Detective Duke

approached the trial judge in chambers and advised the trial court that he may know one

juror. On Monday, April 3, 2023, at the next trial court setting, the trial court informed the

parties of this information on the record. Defense counsel questioned how Detective Duke

knew one of the jurors. Detective Duke responded that he still does not know that he

knows the juror, only that the juror looks familiar to him. Detective Duke stated that he

22 “felt like there was a good chance [he] might know” the juror, he “felt like [he] needed to

say something, because [he’s] not familiar with the protocol . . . so [he] thought the best

thing to do was to let the judge know and go from there. And that’s what [he] did.” The

trial court then stated it would question whether the juror recognized any of the witnesses.

Defense counsel then stated that it moved to recuse the trial court for “having an

ex parte [communication with] an agent of the State,” claiming it was “highly inappropriate

for a judge” to have this communication with a witness without a lawyer present on each

side. The trial court stated that no facts of the case were mentioned, there was no

discussion of Detective Duke’s testimony as a witness, the only discussion was about

how or whether he knew the juror and how the trial court would proceed to determine the

same. The trial court stated there was no ex parte communication because there was no

discussion of the facts of the case or Detective Duke’s role “and [they] merely [discussed

the] procedure as to how we would proceed today.”

The jury was then brought in, and the trial court asked whether any juror

recognized any of the witnesses so far and to indicate so by raising the juror’s hand.

Because none of the jurors responded, the trial commenced.

Tran thereafter filed a motion to recuse, and a hearing was held before another

judge sitting by assignment. Tran argued three things: (1) Detective Duke participated in

ex parte communication with the trial court; (2) the trial court did not inform Tran of this

meeting over the weekend and waited until Monday, creating “a tremendous appearance

of impropriety”; and (3) there is still a juror who may know Detective Duke.

23 The sitting judge explained that the trial court had “nothing to do with a witness

walking into her chambers and telling her something important that she should know” and

did not see how “that is enough grounds to recuse the judge.” The sitting judge denied

the motion to recuse.

C. Discussion

The grounds for recusal Tran relied on in his motion to recuse were Rules 18(b)(1),

(b)(2), and (b)(5) of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 18(b)(1),

(b)(2), (b)(5). Rule 18 provides that a judge must recuse if “the judge’s impartiality might

reasonably be questioned,” Id. R. 18(b)(1), “the judge has a personal bias or prejudice”

concerning a party, id. R. 18(b)(2), and “the judge participated as counsel, adviser, or

material witness in the matter in controversy, or expressed an opinion concerning the

merits of it, while acting as an attorney in government service.” Id. R. 18(b)(5). Members

of the judiciary are prohibited from engaging in ex parte communications between “the

judge and a party, an attorney, a guardian or attorney ad litem, an alternative dispute

resolution neutral, or any other court appointee concerning the merits of a pending or

impending judicial proceeding.” TEX. CODE JUD. CONDUCT, Canon 3(B)(8).

First, the trial court did not engage in an ex parte communication with a party, an

attorney, or any other court appointee. See id.; see also Abdygapparova, 243 S.W.3d at

207 (“Ex parte communications involve ‘fewer than all of the parties who are legally

entitled to be present.’” (emphasis added) (quoting In re Thoma, 873 S.W.2d 477, 496

(Tex. Rev. Trib. 1994, no appeal))). Second, the trial court did not engage in

24 communications concerning the merits of pending litigation. See TEX. CODE JUD.

CONDUCT, Canon 3(B)(8). Therefore, the trial court did not engage in prohibited

communications.

Instead, Detective Duke informed the trial court about his possible familiarity with

a juror, and the trial court informed him of the procedure that the trial court would take

regarding this disclosure. See id.; see also Ochoa v. Ochoa, No. 11-15-00103-CV, 2017

WL 1957708, at *3 (Tex. App.—Eastland May 11, 2017, pet. denied) (mem. op.) (“[T]he

specific facts of the case were not discussed in the e-mails. Therefore, the

communications between Judge Hall and Riggan were not prohibited ex parte

communications.”). Thus, the record establishes that the communication between

Detective Duke and the trial court involved an administrative matter rather than the merits

of the case.7 See Abdygapparova, 243 S.W.3d at 208–09 (finding judicial bias where the

trial judge repeatedly sent “secretive” notes to the prosecutor “providing guidance to the

prosecutor on the presentation of his case”); see also Debord v. State, No. 13-21-00280-

CR, 2023 WL 8642236, at *24 (Tex. App.—Corpus Christi–Edinburg Dec. 14, 2023, pet.

ref’d) (mem. op., not designated for publication) (finding that a substantive, rather than

administrative, matter was a “single, misguided ex parte communication,” but was

“promptly disclosed to Devon’s counsel,” and did not demonstrate judicial bias).

7 Tran agrees that the conversation regarded “Duke’s personal familiarity with a juror, how any

inquiry of the juror would take place, and how the case would proceed in the event the juror recognized” Detective Duke. Thus, Tran acknowledges the conversation did not involve the merits of the case.

25 Furthermore, the trial court apprised defense counsel of this matter at the next

available court setting and promptly polled the jury about whether it was familiar with any

of the witnesses thus far. Only after the jury affirmed it did not recognize any of the

witnesses, did the trial court resume with trial. We conclude that Tran did not satisfy the

“high threshold” demonstrating why the trial court must be recused, and we cannot say

that Tran was deprived of a fair trial. See Ex parte Ellis, 275 S.W.3d 109, 116 (Tex. App.—

Austin 2008, no pet.); Drake, 529 S.W.3d at 528. Accordingly, the presiding judge did not

act without reference to any guiding rules or principles. See In re State ex rel. Durden,

587 S.W.3d at 80. We overrule Tran’s third issue.

V. MOTION FOR CONTINUANCE

Tran argues that the trial court erred by denying his motion for a continuance

thereby preventing him from cross-examining Detective Duke and from conducting an

independent investigation.

We review a trial court’s ruling on a motion for continuance for an abuse of

discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007). We examine the

circumstances presented to the trial court. Guerrero v. State, 528 S.W.3d 796, 799 (Tex.

App.—Houston [14th Dist.] 2017, pet. ref’d). To establish an abuse of discretion, a

defendant must show the denial of his motion actually prejudiced him. Id.; see also

Casillas v. State, No. 04-19-00314-CR, 2020 WL 2441432, at *2 (Tex. App.—San Antonio

May 13, 2020, no pet.) (mem. op., not designated for publication).

26 A motion for continuance must be in writing, set forth in full the sufficient cause for

delay, and be sworn by someone having personal knowledge of the facts relied on for the

request. TEX. CODE CRIM. PROC. ANN. arts. 29.03, 29.08.

B. Analysis

Tran requested a continuance on the grounds that he needed “time to receive and

review undisclosed and relevant evidence” and moved for a continuance on the day of

jury selection. The trial court held a hearing outside the presence of the jury.

At the hearing, Detective Duke testified that he began his investigation by looking

at surveillance video, and, through Google searches, he narrowed the vehicle type to a

Hyundai Genesis. Based on the appearance of the front grill, his Google search revealed

that the model year was a 2012 or 2013. Detective Duke stated that he did not retain any

records from these Google searches. He then searched the SAPD database for moving

violations and police reports which included a 2012 or 2013 white Hyundai Genesis. This

search yielded thirteen results—and the most suspicious was Espinar’s moving violation

for reckless driving in which Xanax and a shotgun were found in the car.8 Detective Duke

investigated his lead, and because his investigation led to evidence and a confession

from Espinar, Detective Duke did not investigate the other twelve results.

Even assuming without deciding that the trial court erred by denying Tran’s motion

for continuance, Tran has not shown that the denial “actually and specifically prejudiced

8 According to Detective Duke, SAPD now uses a different system, so he is unable to recreate his

search as the new system would not deliver the same results.

27 [his] defense.” Guerrero, 528 S.W.3d at 800. Instead, Tran asserts that he was missing

“potentially exculpatory and impeaching documents” about how Detective Duke identified

the suspect vehicle as belonging to Espinar. At the hearing, Tran stated that an

independent investigation “might prove that one of those people was the shooter, but also

it’s [sic] impeachment for Detective Duke.” On appeal, Tran states that he needed

additional time: to conduct an independent investigation regarding the records Detective

Duke failed to retain concerning the other twelve suspect vehicles; to recreate Detective

Duke’s search through an investigator; and to cross-examine Detective Duke in front of

the jury.9

However, Tran “fails to support these assertions with any specific evidence.” Id.

“[M]ere speculation about evidence that a defendant might have developed if the

continuance were granted is not sufficient to demonstrate harm.” Id.; see Renteria v.

State, 206 S.W.3d 689, 702 (Tex. Crim. App. 2006) (“Case-law requires more than this

type of speculation to justify an appellate reversal of a case for a trial court’s failure to

grant a continuance.”); Nwosoucha v. State, 325 S.W.3d 816, 825 (Tex. App.—Houston

[14th Dist.] 2010, pet. ref’d) (“Speculation will not suffice to obtain reversal for a trial

court’s failure to grant a continuance.”). “There is no showing what testimony a

continuance would have permitted [Tran] to discover and produce, or to further develop

9 The record shows that Tran cross-examined Detective Duke regarding his methods in locating

the suspect vehicle, whether he visited the dealership websites regarding changes in the models of their vehicles, whether he kept the police reports he used regarding the other twelve police reports, the fact that Detective Duke can no longer run the same search due to an upgraded system SAPD now uses, and that Detective Duke can no longer reproduce the same results from his previous search.

28 on cross-examination.” Guerrero, 528 S.W.3d at 801. In other words, Tran “has failed to

show what substantive difference the denial of the continuance made.” Id.; see also

Casillas, 2020 WL 2441432, at *3 (“If a motion for continuance is denied, the proper way

to establish actual prejudice, and thus harm, is by presenting evidence at a motion for

new trial hearing.”). On this record and based on the circumstances presented to the trial

court, we conclude that Tran has not shown he was harmed by the denial of his motion

for continuance such that the trial court abused its discretion. Guerrero, 528 S.W.3d at

799. We overrule his fourth issue.

VI. DETECTIVE DUKE’S TESTIMONY

Tran argues the trial court erred by allowing Detective Duke to testify as an expert

in automobile characteristics because he lacked expertise in the field.

A. Pertinent Facts

Detective Duke testified that he viewed surveillance video and was able to

determine that the suspect vehicle was a Hyundai Genesis. According to Detective Duke,

“there were multiple angles, some of it very, very good video . . . to determine that this

was a Hyundai Genesis.” Specifically, he mentioned “that you can see the

wheels[,] . . . what the grill looked like,” and he “was able to narrow that down to only two

possible year models of Hyundai Genesis.” Tran objected, which the trial court sustained.

The following transpired:

[State]: Detective Duke, how many cars have you seen in your lifetime?

[Duke]: Thousands probably.

29 [State]: Millions?

[Duke]: Yeah.

[State]: And are you generally familiar with cars?

[Duke]: I mean, I would say average.

[State]: Just yes or no?

[Duke]: Yes.

[State]: Okay. Are you familiar with different car brands?

[State]: Can you identify different car brands?

[State]: Have you ever used Google to look up a car?

[State]: And is Google a sufficient means to research different types of cars based on your knowledge of how a car looks?

[State]: And I didn’t even ask this, but is that how you determined what kind of car this was in this case?

[Tran’s Counsel]: Your Honor, I’d like to take him on voir dire. If they’re going to prove him as an automotive expert.

[Court]: I’m going to deny that. Go ahead.

30 [State]: Detective Duke, once you Googled this car and it[]s characteristics and you determined that it was a Hyundai Genesis, what did you do?

[Tran’s Counsel]: I object to leading in the first portion, and I also object that this is outside the scope of his expertise.

[Court]: Overruled.

[Duke]: Once I felt confident that this was a Hyundai Genesis, possibly year model 2012 or 2013, I went to SAPD’s database—we have a couple. One that I searched was everybody that had received any kind of moving violation in a white Hyundai Genesis, year model 2012 or 2013.

B. Standard of Review & Applicable Law

We review a trial court’s ruling on the admissibility of opinion testimony from a lay

witness or an expert for an abuse of discretion. Gallo, 239 S.W.3d at 765. The trial court

abuses its discretion when it acts without reference to any guiding rules and principles or

acts arbitrarily or unreasonably. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim.

App. 1990).

A lay witness can only give opinion or inferential testimony if it is (1) rationally

based on the perception of the witness, and (2) helpful to a clear understanding of the

witness’s testimony or the determination of a fact in issue. TEX. R. EVID. 701.

“[O]bservations that do not require significant expertise to interpret and are not based on

a scientific theory can be admitted as lay opinions if the requirements of Rule 701 are

met.” Rhomer v. State, 522 S.W.3d 13, 22 (Tex. App.—San Antonio 2017), aff’d, 569

S.W.3d 664 (Tex. Crim. App. 2019).

31 Additionally, even events not normally encountered by most people in everyday life do not necessarily require the testimony of an expert. The personal experience and knowledge of a lay witness may establish that he or she is capable, without qualification as an expert, of expressing an opinion on a subject outside the realm of common knowledge.

Id. (quoting Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim. App. 2002)). Not all

observations by witnesses with experience and training can be admitted as lay opinion

testimony. Id. “It is only when the fact-finder may not fully understand the evidence or be

able to determine the fact in issue without the assistance of someone with specialized

knowledge that a witness must be qualified as an expert.” Id. (quoting Osbourn, 92

S.W.3d at 537).

In this case, Detective Duke did not offer testimony involving automobile

characteristics. Instead, Detective Duke observed surveillance video of a vehicle

depicting a Hyundai Genesis and used a Google search to find the specific model of the

vehicle. Detective Duke did not offer any opinions based on any scientific theories, and

his testimony was limited solely to what he observed. Tran does not explain how Detective

Duke’s “investigative technique” of using a Google search and his conclusion that the

vehicle was a 2012 or 2013 Hyundai Genesis constitutes an expert opinion, nor does he

reference any legal authority that supports this proposition. See TEX. R. APP. P. 38.1 (i).

In fact, Tran concedes that “[t]he testimony elicited from Detective Duke would

match that of literally any person in the United States. Every person has seen thousands

of cars in their lifetime. Every person has used Google image search.” Therefore, there

is no “specialized knowledge, training or experience . . . based on scientific principles”

32 that would render his testimony as that of an expert. Rhomer, 569 S.W.3d 664; see also

Menchaca v. State, No. 04-22-00243-CR, 2023 WL 4338639, at *10 (Tex. App.—San

Antonio July 5, 2023, no pet.) (mem. op., not designated for publication) (“A witness will

not always qualify as an expert merely by virtue of a general background.”). Accordingly,

we conclude that Detective Duke did not testify as an expert, and his testimony was

admissible as lay witness testimony under Rule 701. See TEX. R. EVID. 701(a) (allowing

lay witness opinion testimony when “rationally based on the witness’s perception”). We

overrule his sixth issue.

VII. IMPEACHING A WITNESS

By his seventh issue, Tran argues the trial court prevented him from impeaching

Dolan as to bias in favor of the State.

“[G]enerally speaking, the Texas Rules of Evidence permit the defendant to cross-

examine a witness for his purported bias, interest, and motive without undue limitation or

arbitrary prohibition.” Jones v. State, 571 S.W.3d 764, 769 (Tex. Crim. App. 2019)

(quoting Hammer v. State, 296 S.W.3d 555, 563 (Tex. Crim. App. 2009)). “[A] defendant

[should] be permitted to explore any plausible basis for witness bias, whether or not the

witness is willing to admit to it.” Id.

Here, Tran asked Dolan if he felt pressured by the State to give his testimony.

Dolan responded, “Not really.” Tran asked whether Dolan had a choice, and Dolan

responded, “No.”

33 [Tran’s Counsel]: Did the prosecutors, while discussing your testimony with you, promise to do anything for you?

[Dolan]: Just take care of my dog.

[Tran’s Counsel]: How long have you had the dog?

[Dolan]: I’ve had the dog for about two weeks.

[Tran’s Counsel]: How important is he to you?

[Dolan]: She’s very important to me.

[Tran’s Counsel]: Do you share your food with your dog?

[Dolan]: Yeah.

[Tran’s Counsel]: What’s her name?

[Dolan]: Her name is Scooby.

The State then objected under relevance, which the trial court sustained.

Tran thereafter made an offer of proof. Tran stated that he was prohibited from

asking “certain questions in front of the jury.” He clarified that he was prevented from

getting into the subject of whether Dolan “felt pressure to cooperate with the State in

answering their questions.” However, the record reflects that Tran asked Dolan just that

question, which prompted Dolan to answer, “Not really.” Additionally, Tran was able to

question Dolan about being pressured to testify, whether he had a choice, and the State’s

promise to care for Dolan’s dog while he testified—all in the presence of the jury. See id.

at 669‒670 (“Appellant should be able to ask her these questions in the jury’s presence

so that it could gauge the plausibility of her response.”). We conclude that the trial court

34 did not prevent Tran from impeaching Dolan as to potential bias. We overrule Tran’s

seventh issue.

VIII. JURY INSTRUCTION

By his eighth issue, Tran argues that the trial court failed to include a jury

instruction on the voluntariness of his custodial interrogation and that he suffered

egregious harm as a result.

We review a claim of charge error through a two-step process: first determining

whether jury charge error exists and then conducting a harm analysis if error is found to

exist. See Lozano v. State, 636 S.W.3d 25, 29 (Tex. Crim. App. 2021). Section 6 of Article

38.22 provides that where the question is raised as to the voluntariness of a statement

from the accused, the court must determine, outside the presence of the jury, whether the

statement was voluntarily made. See TEX. CODE CRIM. PROC. ANN. Art. 38.22 § 6. Upon a

finding that the statement was voluntarily made, “evidence pertaining to such matter may

be submitted to the jury, and it shall be instructed that unless the jury believes beyond a

reasonable doubt that the statement was voluntarily made, the jury shall not consider

such statement for any purpose.” Id. If the question is raised and the parties litigate the

issue, “then the defendant should request a general voluntariness jury instruction” as § 6

becomes the law applicable to the case. Day v. State, 696 S.W.3d 720, 736 (Tex. App.—

San Antonio 2024, pet. ref’d). However, “[i]f no reasonable jury could find that the facts,

disputed or undisputed, rendered [a defendant] unable to make a voluntary statement,

35 then a defendant is not entitled to an Article 38.22, section 6 voluntariness instruction.”

Id. (citing Estrada v. State, 313 S.W.3d 274, 300 (Tex. Crim. App. 2010)).

B. Discussion

Here, Tran contested the voluntariness of his video-recorded statements at a

motion to suppress hearing. However, there is no evidence that Tran’s statements were

involuntary, and nothing in the video suggests that Tran’s custodial interrogation was

involuntary. Furthermore, Tran does not direct us to any evidence in the record that

demonstrates that his custodial interrogation statements were involuntary. Instead, on

appeal, Tran generally asserts that he “did not knowingly, intelligently, and voluntarily

waive his rights set out” in Miranda. Importantly, Tran does not inform this Court what

evidence entitled him to such an instruction, and we find none. See id. In other words, a

reasonable jury could have concluded, based on the evidence, that Tran’s statements

were voluntary. See Martinez v. State, 660 S.W.3d 179, 198 (Tex. App.—San Antonio

2022, pet. ref’d) (“Finally, Martinez was not entitled to an Article 38.22 § 6 voluntariness

instruction because no reasonable jury could find that the facts, disputed or undisputed,

rendered him unable to make a voluntary statement.” (internal quotations omitted)).

Because there was no evidence before the jury on the issue of voluntariness, the trial

court was not required to give the jury a voluntariness instruction as § 6 did not become

the “law applicable to the case.” See Oursbourn v. State, 259 S.W.3d 159, 175 (Tex.

Crim. App. 2008) (“[I]f such evidence is offered before the jury, the trial judge shall give

the jury a voluntariness instruction. It is only after the trial judge is notified of the

36 voluntariness issue (or raises it on his own) that a chain of other requirements comes into

play, culminating in the defendant’s right to a jury instruction.”). We overrule Tran’s eighth

issue.10

IX. IMPROPER ARGUMENT

Lastly, Tran argues that the State engaged in improper argument throughout trial.

“Proper jury argument falls generally within one of four areas: (1) summation of the

evidence; (2) reasonable deduction from the evidence; (3) answer to argument made by

opposing counsel; and (4) a plea for law enforcement.” Ford, 444 S.W.3d at 198. “Error

exists when an argument presents facts not supported by the record to the jury, but this

error is not reversible unless, in light of the entire record, the argument is extreme or

manifestly improper.” See id. Counsel’s remarks during final argument must be

considered in the context in which they appear. See Denison v. State, 651 S.W.2d 754,

761 (Tex. Crim. App. 1983) (en banc).

B. Objections that were Sustained

Tran complains of the following statements made by the State:

(1) [Salinas] wasn’t innocent. [Salinas] was a drug dealer, but he didn’t deserve to die like that. He didn’t deserve to be gunned down behind a Wingstop where we all go to get our food.

10 In any event, Tran did not request a jury instruction regarding voluntariness and must therefore

show he suffered egregious harm, which is “a difficult standard to meet.” Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). In this regard, Tran does not inform this Court how he was egregiously harmed or cite to pertinent authority applying the egregious harm standard to the facts in his case. See TEX. R. APP. P. 38.1(i).

37 (2) That’s fair, but [defense counsel]’s making stuff up that’s not anywhere in this. That’s my objection.

(3) So this would require—if you found this defense that he was justified in shooting, it would require you to find that [Tran] was justified. You have to find all these things are supported by the evidence beyond a reasonable doubt—that [Tran] was unlawfully dispossessed of property—

(4) Y’all, we want you to decide what is immediately necessary in this situation? Go back there and tell us. Because if you think it’s immediately necessary to shoot a kid in the back because he’s running off with your money, fine. Fine. I don’t want to live here in San Antonio, if that’s what people think is okay.

(5) [Espinar] didn’t know that until this trial. We never talked about GPS coordinates on this phone.

Tran objected to these statements, and the trial court sustained these objections. The trial

court then gave the jury an instruction to disregard upon Tran’s request and denied his

motion for a mistrial.

Here, the State’s comments were immediately followed by an objection and an

instruction to disregard. We must presume the jury complied with this instruction. See

Archie v. State, 340 S.W.3d 734, 741 (Tex. Crim. App. 2011) (“The law generally

presumes that instructions to disregard and other cautionary instructions will be duly

obeyed by the jury.”); see also Hawkins v. State, 135 S.W.3d 72, 76-77 (Tex. Crim. App.

2004) (providing that when the trial court sustains an objection to improper argument and

grants a requested instruction to disregard, the only adverse ruling and thus the only

proper issue for appeal is whether the trial court abused its discretion in denying a

mistrial); Saavedra v. State, No. 04-16-00747-CR, 2017 WL 5615577, at *3 (Tex. App.—

38 San Antonio Nov. 22, 2017, no pet.) (mem. op., not designated for publication) (“When a

trial court sustains an objection and gives the jury an instruction to disregard, but denies

a motion for mistrial, an appellate court assumes, without deciding, that the argument was

improper and only looks to whether the court abused its discretion when it denied the

motion for mistrial.” (internal citation omitted)). Generally, any harm from an improper jury

argument will be cured by an instruction to disregard, and Tran does not argue on appeal

that the trial court erred in denying his motions for a mistrial. See Hawkins, 135 S.W.3d

at 84; see also Turk v. State, No. 04-02-00743-CR, 2004 WL 56920, at *1 (Tex. App.—

San Antonio Jan. 14, 2004, no pet.) (mem. op., not designated for publication).

C. Objections at Trial do not Comport

At trial, Tran objected to the following statements based on “unsworn testimony”:

“Okay. So I want to merge this, because I want the jury to know the truth. You just said

that you came home from waking up from a stupor, and [Tran] and you go back to your

apartment and you didn’t know what time it was that night?”; and “Now, Detective Duke

starts asking you real specifics about the murder.” Tran further objected to the following

questions posed by the State to Espinar based on bolstering: (1) “Now, I guess you say

that in an interesting way. You’re here telling the jury that you want to accept

responsibility. Why are you still lying at that point?”; (2) “What things do you know off the

top of your head that you’ve stayed consistent with this entire time?”; (3) “So your story

has never changed as to who was driving and who was in the passenger seat?”

On appeal, Tran argues that these statements are improper arguments. To

39 preserve such arguments for appellate review, a party must present to the trial court a

timely request, objection, or motion stating the specific grounds for the ruling desired and

obtain a ruling. TEX. R. APP. P. 33.1(a); Navarro-DePaz v. State, 689 S.W.3d 19, 24 (Tex.

App.—San Antonio 2024, pet. ref’d); Ford v. State, 444 S.W.3d 171, 198 (Tex. App.—

San Antonio 2014), aff’d, 477 S.W.3d 321 (Tex. Crim. App. 2015) (“[A] defendant’s failure

to object to a jury argument or failure to pursue an adverse ruling to an objection to a jury

argument forfeits the defendant’s right to complain about the argument on appeal.”); see

also Romo v. State, No. 04-03-00327-CR, 2004 WL 1251662, at *3 (Tex. App.—San

Antonio June 9, 2004, no pet.) (mem. op., not designated for publication) (“An objection

as to bolstering and an objection as to the prosecutor giving unsworn testimony are two

distinct objections.”). In the trial court, Tran did not object on the basis of improper

argument. “In the absence of a trial objection that comports with a defendant’s argument

on appeal, the issue on appeal is waived.” Trejo v. State, 683 S.W.3d 815, 821 (Tex.

App.—San Antonio 2023, no pet.). Therefore, Tran did not preserve these complaints for

our review.

D. Remaining Objections

Tran complains the State improperly shifted the burden of proof during its closing

argument. After discussing Tran’s defenses and the evidence presented at trial, the State

made the following statement: “If you have more than one defense, you have no defense.

They’re throwing everything at the wall because they know what the truth is.” The trial

court overruled Tran’s objection. Here, the State presented its theory of the case and

40 evidence linking Tran to the murder. The State refuted Tran’s different defensive theories,

including that Tran was giving sandwiches to homeless people at the time of the murder

and that Tran’s cell phone was hacked, which Tran claimed was the reason why

incriminating evidence was found on it. Thus, it was reasonable for the State to deduce

from the evidence and argue that Tran’s multiples defenses were meritless. See Denison,

651 S.W.2d at 762. Accordingly, we conclude the State engaged in proper jury argument,

and the trial court properly overruled Tran’s objection. See Ford, 444 S.W.3d at 198.

Next, Tran argues that the State engaged in improper argument while discussing

Dolan:

Then if he’s not showing up for court on Monday morning when we ask him to, or Tuesday morning when we ask him to, yes, we are going to go out and pick him up. And the only way to legally do it is to put him in cuffs and bring him here to testify. We did that for the family and we did that for justice and we did for the truth.

According to Tran, this inflamed the jury and attempted to elicit sympathy and bias.

However, during Tran’s closing argument, he stated that the State “drag[ged] him in here

in chains and in orange, they jail[ed] him. They ma[d]e him come up here.” It is proper

jury argument for the State to “answer to argument made by opposing counsel,” such as

the argument that Tran made here. Id. Thus, the trial court properly overruled Tran’s

objection.

Tran also complains the following constitutes improper argument: “The

investigation. Detective Duke, he’s a great detective. Y’all can make whatever

determination you want based on his credibility. But every single attack a defense

41 attorney ever does is on how much better a job they could have done.” The State did not

state its personal belief about Detective Duke’s credibility or indicate that the jury should

believe Detective Duke. See Stout v. State, 426 S.W.3d 214, 222 (Tex. App.—Houston

[1st Dist.] 2012, no pet.) (“A prosecutor may not attempt to make that credibility

determination for the jury.”). Instead, the State informed the jury to make whatever

determination it wanted based on Detective Duke’s credibility. See id. (explaining that the

State “may invite the jury to make its own credibility determination based on the evidence

presented at trial.”). Therefore, this does not constitute improper argument.

Lastly, Tran complains of the following:

When you go back there—and Austin already told you this—we want you to find him guilty of capital murder. And we understand that is a hard decision to make. But if you find yourself saying, yes, he is guilty of capital murder, but you’re not following the order, but I feel bad for him, but he’s young . . . . Don’t use bias, sympathy or prejudice. One of the things that really got to me when we were doing voir dire is a lot of people were crying and saying ‘I could never send somebody away for that long,’ and they were crying thinking about his consequences. Why don’t you think about Andres Salinas’ family?

According to Tran, the reference to the victim’s family “is a plea for objectivity or for

considerations of the expectations of the victim’s family.” We disagree. The State “did not

ask the jurors to abandon their objectivity by placing themselves in the victim’s shoes.”

Ayala v. State, 267 S.W.3d 428, 435 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d).

Furthermore, the State did not ask the jurors to render a verdict based on what the victim’s

family desired. See id. (finding that the State’s remarks that the jury should think of justice

for the victim’s family was not improper). Instead, the State merely asked the jurors to

42 follow the law, even if doing so conflicted with their personal beliefs. We overrule Tran’s

last issue in its entirety.

X. CONCLUSION

We affirm the judgment of the trial court.

JAIME TIJERINA Chief Justice

Do not publish. TEX. R. APP. P. 47.2 (b).

Delivered and filed on the 20th day of March, 2025.