In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-23-00072-CR ___________________________
MIYUKI RYAN-POYDRAS, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 1 Denton County, Texas Trial Court No. CR-2020-03337-A
Before Sudderth, C.J.; Birdwell and Wallach, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
A jury convicted Appellant Miyuki Ryan-Poydras of assault–family violence
against her then-husband, Travis Poydras.1 At trial, there was no dispute that the
couple had argued on the day in question or that when their argument escalated,
Appellant pulled out some of Travis’s beard and kicked him. Appellant argued that
she had been acting in self-defense, while the State contended that she had been the
aggressor. The jury found Appellant guilty.
In three issues, Appellant argues that the trial court erred by denying her
motion for mistrial after Travis testified that she had cursed at strangers, that the trial
court erred by excluding material evidence from their divorce case and about Travis’s
propensity to use marijuana, and that there were inconsistent verdicts because both
the guilty and the not-guilty verdict forms were signed. We will affirm.
Background
Travis testified at trial that on March 29, 2020, Appellant became angry because
Travis had not adequately cleaned a spot on the carpet where their dog had urinated.
Travis described her reaction as “going off.” Travis explained, “She was like, Are you
f*cking stupid? Like, you don’t know how to clean? I told you to blot this up. What
the f*ck is wrong with you?” Travis left the house and walked around the block
hoping that Appellant would calm down while he was gone. When he returned home,
1 To avoid confusion, we will refer to Ryan-Poydras and Poydras as Appellant and Travis, respectively.
2 however, Appellant was still angry. When Travis walked in the house, Appellant
started “cursing [Travis] out again [and] calling [him] names,” and she told Travis “to
get [his] stuff and leave.” Travis began packing up some belongings, but he could not
find his work laptop and headset, which he needed to work the next day, because
Appellant had taken them. Travis stated that while he packed his clothes, Appellant
grabbed him by the back of the neck and tried to shove him to the ground. She also
grabbed his beard and pulled out “chunks of hair” and dug her nails into the back of
his neck. Travis then went into the kitchen, where Appellant “start[ed] swinging on
[him] and . . . hit [him] in [his] side,” which caused him to bend over, at which point
she kicked him in the mouth. He also stated that she punched him in the head. Travis
called 911; in the call, he described some of Appellant’s actions, including pulling out
pieces of his beard, but he mainly complained that she would not return his laptop.
Travis also described some incidents in 2018 when Appellant had been
physically aggressive with him. Travis said that in one incident, Appellant had grabbed
his phone away from him and pushed him with her body, but he suffered no physical
injuries. However, she would not let him leave the house, so he called the police. No
arrests resulted from that incident. He also described a 2019 incident when Appellant
had attempted to choke him. He left the house but did not call the police. Travis
further stated that the couple separated in October 2020, about seven months after
the assault at issue in this case, and that their divorce was finalized in January 2022.
3 Appellant testified that Travis was the aggressor in the assault that led to her
arrest, that she had acted in self-defense, see Tex. Penal Code Ann. § 9.31(a) (allowing
defendants to raise self-defense as a justification for criminal offenses), and that he
had assaulted her on other occasions as well. Appellant explained that on the day of
the offense, she became angry because Travis had been smoking marijuana all day
when he was supposed to be taking care of their children, so she ordered him to leave
the house, which was her separate property. When she began packing up his things,
he grabbed her and shook her, and she pulled on his beard in defense. He left the
house, but he came back after a while and grabbed her again, which is why she kicked
him. Because of a premarital agreement, Travis knew that he would not receive any of
her property in a divorce, so he demanded that she give him money and one of her
properties.
Lewisville Police Officer Charles Bonar, who had been dispatched in response
to Travis’s 911 call, testified for the State. Bonar said that when he arrived at the
couple’s home, Travis “had a busted lip with lacerations still bleeding” and “parts of
his beard were on his chest.” When Bonar tried to talk to Appellant about what had
happened, she was “very upset, pretty hostile[,] and uncooperative with the questions
that [he] was asking. Not very forthcoming and pretty aggressive.” Bonar asked her
what happened multiple times, but “[s]he was very vague. . . [S]he said, I’m not going
to get into this right now.” After Bonar took Appellant outside, she said that “they
had got into an argument and at some point she had kicked [Travis] in the mouth with
4 her right foot.” She did not tell Bonar that Travis had grabbed her or shaken her that
day, and she also did not say anything to him about Travis smoking marijuana. He did
not notice an odor of marijuana in the house. Bonar did not see any bruises or other
injuries on Appellant, and she did not complain of any. Bonar determined that
Appellant had been the primary aggressor in the situation.
Lewisville police officer David O’Brien testified that he also arrived at the
couple’s home after Travis’s 911 call, and he noticed Travis’s bleeding lip and a patch
of his beard missing. After talking to Travis, O’Brien walked through the house and
saw hair from Travis’s beard on the floor. In his conversations with Travis, he saw
nothing that pointed to Travis being the aggressor in the couple’s fight. He also did
not notice any smell of marijuana or any signs of intoxication on Travis.
Another law enforcement officer testified about the 2018 incident when Travis
had called the police. The officer stated that when he arrived at the home, Appellant
was “not being very cooperative when [he and another officer] were trying to do our
investigation” and that she stuck her arm across the door and “would not allow
[Travis] to exit the residence” to talk to the officers who responded to the call. The
officer said, “You could tell that [Travis] wanted to talk to us, but I don’t think he felt
comfortable doing it right there next to her.” Eventually the officers were able to
speak to Travis, who told them that no assault had taken place.
The State also introduced text messages from Appellant calling their dog “a
spiteful piece of sh[*]t” for urinating on the carpet and telling Travis to get rid of the
5 dog, as well as texts from 2019 in which she called Travis a “deadbeat f[*]ckin useless
husband,” insulted his family, and told him to leave. Both parties asked Travis
questions about an affidavit that Travis signed soon after the assault in which he said
that he was as much at fault in the altercation as Appellant was and that he did not
know for sure how his lip had been injured. At trial, Travis stated that those parts of
the affidavit were not true.
At the close of the guilt-innocence stage, the trial court submitted its charge to
the jury. The “guilty” and “not guilty” verdict forms were on the same page, and the
presiding juror signed in the space to indicate a guilty verdict. At the top of the page
was a space for the trial court to sign to certify the charge. The trial court signed that
page, but not on the line designated to certify the charge. Instead, the trial court
signed in the “not guilty” space. 2 The record does not indicate whether the trial court
signed the form before the charge was submitted to the jury or after the jury returned
its verdict.
After the jury reached a verdict, the trial court read the guilty verdict, asked the
presiding juror to confirm that it was the unanimous verdict of the jurors, and asked
the parties if there were any reasons for the court not to accept the verdict. The
parties did not object to accepting the verdict, and there was no request to poll the
jury.
A copy of that page of the verdict form (with the presiding juror’s signature 2
redacted) is attached to this opinion as an appendix.
6 The trial court assessed Appellant’s punishment at confinement in the Denton
County Jail for 365 days, probated for twenty months, and a $1,000 fine.
Discussion
I. Motion for Mistrial
In her first issue, Appellant argues that the trial court erred by denying her
motion for mistrial after Travis testified that she had cursed at strangers. The State
counters that the trial court did not abuse its discretion and that any potential error
was cured by the trial court’s instruction to the jury to disregard the controverted
testimony. We agree with the State.
A. Background
During his testimony, Travis was asked if, during the early years of their
relationship, “without going necessarily into specific instances, were there some traits
about [Appellant] that to [him] started to be red flags?” Appellant’s attorney objected
that the probative value of the testimony was outweighed by its prejudicial effect. The
trial court ruled that the State was “allowed to go into the nature of the relationship,
as long as [the prosecutor] ke[pt] it . . . very narrow and to the nature of the
relationship and not necessarily any prior bad acts.” Travis then answered, “Yes, I’ve
seen her curse people out. I’ve seen her do that to people like contractors as well.”
The trial court intervened, stating, “Per my ruling, it needs to be regarding their
relationship.” Appellant’s attorney then asked that the jury be instructed to disregard
Travis’s statement. The trial court granted that request but denied Appellant’s follow-
7 up request for a mistrial. Travis then testified about times when Appellant had yelled
and cursed at him.
B. Analysis
We review the denial of a mistrial motion for abuse of discretion. Becerra v.
State, 685 S.W.3d 120, 127 (Tex. Crim. App. 2024); Gomez v. State, 552 S.W.3d 422,
428 (Tex. App.—Fort Worth 2018, no pet.). Under that standard, we determine
whether the trial court’s decision was arbitrary or unreasonable. Becerra, 685 S.W.3d at
127.
“The remedy of a mistrial is intended for a ‘narrow class of highly prejudicial
and incurable errors’—those that would render any further expenditure of time and
expense in trying the case wasteful and futile.” Gomez, 552 S.W.3d at 428 (quoting
Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000)). A mistrial is “‘an extreme
remedy that should be granted only if residual prejudice remains after less drastic
alternatives have been explored.’” Id. (quoting Jenkins v. State, 493 S.W.3d 583,
612 (Tex. Crim. App. 2016)). To determine whether a trial court should have granted
a mistrial, we consider (1) the severity of the misconduct, i.e., the prejudicial effect of
the testimony; (2) curative measures, i.e., the efficacy of the trial court’s cautionary
instruction, if any; and (3) the certainty of conviction absent the misconduct, i.e., the
strength of the evidence supporting the conviction. Rodriguez v. State, 678 S.W.3d 375,
382 (Tex. App.—Dallas 2023, pet. ref’d); see also Hawkins v. State, 135 S.W.3d 72,
8 77 (Tex. Crim. App. 2004). The considerations overlap with those involved in a harm
analysis. See Hawkins, 135 S.W.3d at 77.
The trial court instructed the jury to disregard Travis’s statement, and the
prosecutor never mentioned the testimony afterwards. Travis’s one-off comment was
not so extreme that any prejudice arising from it was incurable short of a mistrial.
Thus, we presume that the jury followed the trial court’s instruction. See Wells v. State,
558 S.W.3d 661, 670 (Tex. App.—Fort Worth 2017, pet. ref’d); see also Atterberry v.
State, No. 08-21-00069-CR, 2022 WL 3588108, at *7 (Tex. App.—El Paso Aug. 22,
2022, no pet.) (not designated for publication) (regarding witness testimony about an
occurrence when appellant appeared to be on drugs and had sworn at the witness);
Ludwig v. State, 428 S.W.3d 344, 350 (Tex. App.—Amarillo 2014, no pet.) (noting that
“[w]hen the trial court gives a prompt instruction to disregard the testimony at issue,
this ordinarily will cure any prejudice arising from the testimony” and that we
generally presume that the jury followed the trial court’s instructions to disregard).
Moreover, the evidence supporting the conviction was strong. Travis described
the events of the evening for the jury, and two police officers who responded to his
911 call also testified, and both said that nothing in their talking with the two or what
they saw at the scene led them to believe that Travis was the aggressor. Although
Appellant claimed that she had been injured that night and showed the jury pictures
9 of bruises on her arms,3 the police officers said that they did not see any injuries on
her that night, and she did not tell them that she had been injured. The jury also saw
text messages between the two in which she repeatedly swore at Travis, called him a
failure, and insulted his family and his parenting, and his responses to those texts were
calm and conciliatory.
Given the trial evidence, the single statement from Travis about Appellant
cursing at third parties would not have substantially affected the trial’s outcome. See
Montoya v. State, No. 05-10-01468-CR, 2012 WL 1059699, at *4 (Tex. App.—Dallas
Mar. 30, 2012, no pet.) (mem. op., not designated for publication). We cannot say that
the trial court abused its discretion by overruling Appellant’s mistrial request.
Accordingly, we overrule Appellant’s first issue.
3 The State pointed out in questioning Appellant that her pictures did not have time stamps. Appellant’s friend Oscar Mendez testified that he took some of the pictures for her after her release from jail the day after the assault. He did not see all of the injuries for which she produced pictures; all he saw on her on that day were some red marks on her arms and hands. Appellant also produced pictures that she claimed showed injuries inflicted by Travis on prior occasions. Oscar testified that he had never seen any injuries on Appellant before and had never heard Appellant complain about abuse by Travis. Travis provided explanations for the alleged previous injuries. For example, Appellant claimed that a picture of swelling to her face was from Travis striking her, but Travis testified that Appellant had been having pain with her teeth, and the State produced text messages showing that she went to the dentist around that time. He also testified that some of the pictures showed injuries that Appellant had sustained in an altercation with her brother and sister-in-law.
10 II. Excluded Evidence
In her second issue, Appellant argues that the trial court erred when it did not
allow her to enter into evidence the parties’ premarital agreement “as well as evidence
of [Travis’s] alleged drug usage and the accompanying divorce and custody case.”
On the morning that trial proceedings began, the State filed a motion in limine
addressing, among other things, prior bad acts of any State witness. Appellant agreed
to approach before raising the listed topics. Then, after the jury had been selected but
before trial began, Appellant’s attorney raised the topic of Travis’s marijuana use,
stating that he planned to talk in his opening statement about Travis’s drug use on the
day of the altercation. He argued,
The[ State’s] motion in limine—our allegations are that the marijuana— his marijuana use was at issue during the entire marriage. On the date this happened that he was high, that he smoked marijuana continuously that day. So I wanted to—I had that in my opening statement. It’s all part of the same transaction. So I certainly think it’s admissible, but I didn’t want to do that without addressing the Court first. [Emphasis added.]
The State objected that evidence on that topic was not admissible under Rule
403. The trial court responded that Appellant could go into the subject “in relation to
time or if the door is somehow opened as to that,” but that the court felt “like there is
a 403 objection to be made there” and “wouldn’t use it in [Appellant’s] opening
statement.” Appellant countered that “[i]t has to come out” because “that’s the reason
why this whole deal started,” and although he did not mind approaching the bench
11 before offering such evidence, “it’s all part of the same transaction. So . . . under the
law[,] it has to come in.”
The trial court replied, “[W]ithout getting too much into it—I guess my
question is the timing. I don’t believe that prior marijuana use—,” at which point
Appellant interjected, “I don’t care about the prior marijuana use. . . . I’m talking about the
marijuana use that day.” [Emphasis added.] He argued,
We’re alleging he assaulted her. . . . She wakes up. She smells marijuana. . . . He is allegedly taking care of the kids. They have an altercation. He leaves, smokes marijuana again, comes back reeking of marijuana, and there’s another altercation. And then it’s a number of hours later that he calls the police.”
The trial court ruled, “I’m going to allow—no prior use of marijuana can come in at
this time, that there was any alleged use of marijuana prior to [the day of the
altercation]. If that was the basis for an argument, then I will allow that.” 4 [Emphasis
added.] The trial court then asked for confirmation, “[j]ust to be clear,” that “the basis
of the argument was marijuana use for that day.” Appellant’s attorney confirmed,
“That’s correct.”
Also on the first day of trial, during cross-examination of Travis, Appellant’s
attorney attempted to have the couple’s premarital agreement admitted, but the trial
court sustained the prosecutor’s hearsay objection. However, the trial court allowed
Appellant to question witnesses about the premarital agreement and the couple’s
4 We assume for purposes of this appeal that the trial court’s statement was a ruling on admissibility and not a ruling on the State’s motion in limine.
12 divorce. Travis then admitted in questioning that before the parties’ marriage, he
“didn’t own anything, but [Appellant] owned a lot” and that he “would walk away
with nothing if [they] got divorced.” Travis also acknowledged that in the divorce, he
alleged that Appellant had committed assault–family violence because Appellant “was
trying to take custody,” that he had asked to be appointed as their children’s sole
managing conservator based on the allegation, and that despite the allegation, the
divorce decree had appointed both parents as joint managing conservators.
On the second day of trial, Appellant’s attorney changed course and announced
that actually, he did care about evidence of Travis’s prior drug use for purposes of
showing the parties’ relationship. He stated that he was “cognizant of [the trial
court’s] previous ruling about no prior marijuana use prior to the date of the incident
in question” and that he wanted to make an offer of proof. For that purpose, he
offered Appellant’s divorce petition, stating that he “assume[d] that [it] would not be
admitted.” He then said, “I would just state for the record that we would have liked to
have gone into [Travis’s] marijuana use previous to [the incident day], to explain the
relationship between the parties to the jury, that that’s been a big bone of contention
between the parties.” After the State raised a hearsay objection to the petition, the trial
court stated it would be admitted “[f]or these purposes.”
The petition alleged that Travis had a “pattern of child neglect[,] including but
not limited to drug use,” and it asserted that Travis should be required to undergo
drug testing and to have supervised visitation of the children unless his drug test was
13 negative. The body of the petition did not include any specific facts about Travis’s
drug use. However, Appellant’s affidavit, attached to the petition as an exhibit,
included allegations related to Travis’s marijuana use.
Appellant’s affidavit asserted that on December 24, 2020, Travis came to stay
with her to help take care of their two-year-old twins because Appellant was
recovering from knee surgery. When she woke up the next morning, Travis “wreaked
[sic] of marijuana” and admitted that he had “smoked several times outside overnight
and [that] morning.” Appellant was concerned that their children had been affected by
secondhand smoke on Travis’s clothing because they were in a deep sleep despite
having been awake a few hours earlier. Appellant left and went to her parents’ house
and called 911. She then returned home, by which time the children were awake. The
EMTs who arrived told her that there was nothing for them to do because the
children were awake and seemed fine and that the EMTs could not do anything “to
detect a contact high.” A police officer also responded to the call, but he told her that
he could not arrest Travis, even after she showed him the marijuana she had found,
because his field testing could not distinguish between hemp and marijuana. 5
Appellant’s affidavit further stated that in 2013, Travis had “run[-]ins with law
enforcement surrounding marijuana”—an arrest for possession, which was in the
process of being expunged, and a charge for drug paraphernalia possession.
According to the affidavit, Travis told the officer that he and Appellant both 5
smoked marijuana and had done so that morning, but Appellant denied it.
14 B. Analysis
Appellant complains about the exclusion of the couple’s premarital agreement,
evidence about the couple’s divorce, and evidence about Travis’s drug use. She makes
two legal arguments: (1) that, in violation of the Confrontation Clause, she was
prohibited from cross-examining witnesses to the extent that she could not present a
vital defensive theory and (2) that the trial court should have allowed the evidence
under Texas Code of Criminal Procedure Article 38.371.
Regarding Appellant’s Confrontation Clause argument, she does not tell us
where in the record she raised that complaint in the trial court, and our review of the
record has not revealed any objection on that basis. Appellant therefore did not
preserve her Confrontation Clause argument for appeal. See Austin v. State, No. 02-18-
00484-CR, 2019 WL 6205247, at *3 (Tex. App.—Fort Worth Nov. 21, 2019, pet.
ref’d) (mem. op., not designated for publication). We thus limit our analysis to her
complaint about the exclusion of evidence under Article 38.371.
1. Divorce Petition and Drug-Use Evidence
Article 38.371 permits a defendant in an assault–family violence case to offer
evidence regarding the nature of the relationship between the defendant and the
complainant. Tex. Code Crim. Proc. Ann. art. 38.371(a), (b). The article, however, is
subject to the rules of evidence. See id. art. 38.371(b). Under those rules, to preserve
error regarding evidence exclusion, a party must make an offer of proof in question-
and-answer form or with a concise statement by counsel unless the substance of the
15 evidence was apparent from the context. Tex. R. Evid. 103; Mays v. State, 285 S.W.3d
884, 889 (Tex. Crim. App. 2009). If the offer is in the form of a statement, it “must
include a reasonably specific summary of the evidence offered and must state the
relevance of the evidence unless the relevance is apparent, so that the court can
determine whether the evidence is relevant and admissible.” Mays, 285 S.W.3d at 889–
90 (quoting Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998)).
Appellant argues that she “needed to be able to explain to the jury that her
husband had a financial and custodial incentive to blame her for this offense” and that
“[t]his was [Travis’s] way to ensure he received more money if Appellant were to leave
him . . . . By blaming her, he was also able to draw attention away from his drug use,
which was at issue in the divorce proceeding,” as evidenced by the divorce petition.
However, on the trial’s first day, not only did Appellant fail to make an offer of proof
with respect to Travis’s prior drug use, but Appellant’s attorney also told the trial
court that he did not care about prior-drug-use evidence and only wanted to introduce
evidence of Travis’s drug use on the day of the assault. The trial court allowed
Appellant to introduce the day-of drug-use evidence. Appellant therefore received
exactly what she asked for. See Tex. R. App. P. 33.1(a)(1); Clark v. State, 365 S.W.3d
333, 339 (Tex. Crim. App. 2012) (stating that to preserve error, the objecting party
must “let the trial judge know what he wants, why he thinks he is entitled to it, and . . .
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” (quoting Pena v. State, 285 S.W.3d 459,
16 464 (Tex. Crim. App. 2009))). Thus, Appellant has not preserved any appellate
complaint to that specific ruling.
However, Appellant again raised the issue of Travis’s prior drug use on the
trial’s second (and final) day when she made her offer of proof. For purposes of this
appeal, we will assume that the trial court understood that Appellant’s offer was a
request for the court to reconsider its prior ruling. See Mays, 285 S.W.3d at 890 (stating
that one purpose of an offer of proof is “to permit the trial [court] to reconsider [its]
ruling in light of the actual evidence”). We will further assume that, by stating that the
petition would be admitted for purposes of the offer of proof, the trial court
overruled Appellant’s request. See Tex. R. App. P. 33.1(a); Tex. R. Evid. 103.
However, to the extent that Appellant wanted to introduce evidence of Travis’s prior
drug use other than what was contained in the divorce petition,6 she did not provide a
reasonably specific summary of the evidence offered. Accordingly, she has not
preserved error as to the exclusion of any drug-use evidence other than the references
in the divorce petition and attached affidavit. See Tex. R. Evid. 103; Mays, 285 S.W.3d
at 891 (concluding that the appellant’s summary in his offer of proof, which was made
“in the most general and cursory terms, without any of the meat of the actual
evidence,” did not preserve error).
6 Appellant does not reference any particular part of the petition or affidavit that would have been helpful for the jury to see, but from the argument’s context in her brief, we assume that she wanted the jury to see the references to Travis’s drug use.
17 As for the divorce petition, Appellant asserts that the evidence would have
shown that Travis had a motive to lie about who had assaulted whom in order to
improve his position in the divorce. See Tex. Code Crim. Proc. Ann. art. 38.371. For
purposes of this appeal, we will assume that Appellant made a sufficient offer of
proof and that her argument on appeal sufficiently matches her trial court argument.7
See Austin, 2019 WL 6205247, at *3 (stating that party offering evidence must explain
why it is needed and noting that the complaint on appeal must match the complaint
below). We will further assume that the trial court abused its discretion by excluding
this evidence. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000)
(applying an abuse of discretion standard to a trial court’s exclusion of evidence).
Nevertheless, we conclude that Appellant was not harmed by the exclusion.
Because the exclusion of this evidence involves nonconstitutional error, we
must disregard it if we have a fair assurance from an examination of the record as a
whole that the error did not influence the jury or that it had but a slight effect. See
Macedo v. State, 629 S.W.3d 237, 240 (Tex. Crim. App. 2021); cf. Walters v. State,
247 S.W.3d 204, 222 (Tex. Crim. App. 2007) (holding exclusion of evidence
supporting defendant’s defensive theory was nonconstitutional error when it did not
prevent defendant from presenting a defense). In deciding that question, we consider
7 Appellant asserted in the trial court that the evidence was relevant because it would show that the couple had continual disagreements over Travis’s drug use. This argument, like the one on appeal, relates Travis’s drug use to an aspect of the couple’s relationship. See Tex. Code Crim. Proc. Ann. art. 38.371.
18 (1) the character of the alleged error and how it might be considered in connection
with other evidence, (2) the nature of the evidence supporting the verdict, (3) the
existence and degree of additional evidence indicating guilt, and (4) whether the State
emphasized the complained-of error. Macedo, 629 S.W.3d at 240; Motilla v. State,
78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the jury
instructions; the State’s theory, any defensive theories, closing arguments, and voir
dire, if applicable. Haley v. State, 173 S.W.3d 510, 518–19 (Tex. Crim. App. 2005);
Motilla, 78 S.W.3d at 355–56.
Because Appellant and Travis both testified, including about what happened on
the day of the assault and during other arguments between the couple, the jury was
able to consider each person’s credibility. Both officers who responded to Travis’s
911 call testified that they saw no injuries on Appellant, that she did not complain of
any, and that she was uncooperative. The jury saw from her text messages that when
she had complaints about Travis’s behavior, she became irate and insulting while
Travis remained conciliatory and apologetic. If the jury believed Travis and the
officers—and they apparently did—then the jury had more than sufficient evidence to
find Appellant guilty. See Motilla, 78 S.W.3d at 357; Rideau v. State, Nos. 09-16-00411-
CR, 09-16-00412-CR, 2018 WL 651775, at *9 (Tex. App.—Beaumont Jan. 31, 2018,
pet. ref’d) (mem. op., not designated for publication) (holding that exclusion of
defensive evidence did not have substantial effect on jury’s verdict).
19 Appellant’s defense at trial was that because of their premarital agreement, after
she became angry about Travis’s drug use on the day of the assault and ordered him
to leave, Travis grabbed Appellant and demanded that she give him money and one of
her properties to make him leave. When she refused, he called the police and blamed
her for the assault. The petition did have some relevance to whether Travis was
someone who used marijuana, which could support Appellant’s testimony that he had
done so on the day of the assault and that it started their argument. The petition also
would have put before the jury Appellant’s contention that Travis had possessed
marijuana in 2013 (seven years before the assault) and had also used marijuana
approximately nine months after the assault. But this evidence was not particularly
strong evidence to show that the couple had continuously fought about his marijuana
use during their marriage (Appellant’s stated reason for offering the petition at trial),
that they had fought about it on the day of the assault, or that Travis might have lied
to police about the assault in order to distract a potential future divorce court from his
drug use (Appellant’s argument on appeal).
Further, even without the petition, Appellant was able to argue to the jury that
Travis had a financial and child-custody incentive to blame her for the assault, and she
had better evidence than the divorce petition—testimony about the premarital
agreement’s terms and effect, the divorce proceeding, and its outcome. Additionally,
because the trial court had ruled that Appellant could introduce evidence of Travis’s
20 day-of drug use, Appellant was not prevented from arguing that they had fought that
day about his drug use.
Other parts of the record do not reveal harm. In pretrial argument, when
urging the admissibility of the day-of drug-use evidence, Appellant’s attorney
mentioned that Travis’s prior drug use was “a factor in the divorce,” but his argument
focused on the admissibility of the same-day drug-use evidence and disregarded prior
drug-use evidence. Then, in voir dire, Appellant’s attorney asserted that a party in a
divorce proceeding could benefit financially and in the custody determination if the
other party had committed family violence, but nothing in the attorney’s voir dire
suggested a defensive theory that Travis had lied about an assault to distract a divorce
court from his drug use.
Appellant’s attorney asserted in his opening statement that the couple’s
argument started after Appellant woke up and smelled marijuana “reeking from
Travis,” and that Travis continued to smoke marijuana throughout the day, leading to
another argument. He asserted that Appellant acted in self-defense and that Travis
blamed the assault on her to get around the premarital agreement, and he emphasized
the size difference between Appellant and Travis. This argument tied the assault to
the divorce in that it asserted that Travis lied about the assault to get money from
Appellant, but it did not tie Travis’s drug use to the motive to lie. In closing, the
attorney did not mention Travis’s drug use that day. As for whether the State
emphasized the exclusion of evidence, although the police officers who had
21 responded to the 911 calls said that they had not noticed anything to indicate that
Travis had smoked marijuana, in closing, the prosecutor did not mention that
testimony or argue the absence of evidence showing that Travis had used drugs.
In summary, although Appellant argued below that Travis had a motive to lie
about the assault, she based that contention on the terms of the premarital agreement
and did not try to tie the motive to Travis’s drug use. Instead, she wanted the drug use
evidence to show a source of the argument between Appellant and Travis. Appellant
put on testimony about the premarital agreement and the divorce—including
testimony from Travis—and the trial court permitted her to put on evidence that the
couple had fought that day about Travis’s drug use. Moreover, the State did not
compound any harm from the exclusion of the evidence by emphasizing the absence
of the evidence. See Lester v. State, 120 S.W.3d 897, 903 (Tex. App.—Texarkana 2003,
no pet.) (holding that harm from exclusion of corroborating witness’s testimony was
compounded by the State’s closing argument referencing the defendant’s inability to
present a corroborating witness). Reviewing the record as a whole, we conclude that
the exclusion of the divorce petition and its allegations about Travis’s drug use did not
have a substantial or injurious effect on the jury’s verdict and did not affect
Appellant’s substantial rights. See King v. State, 953 S.W.2d 266, 271–73 (Tex. Crim.
App. 1997). Accordingly, we overrule Appellant’s second issue.
22 2. Other Excluded Evidence
Aside from evidence of Travis’s drug use, Appellant also argues that she “had a
strong interest in being able to explore the divorce and premarital agreements8
through direct and cross-examination of the witnesses.” She has not presented
reversible error.
Regarding the premarital agreement, although the trial court excluded the
agreement itself as hearsay, Appellant does not argue on appeal that the agreement
was not hearsay. See Tex. R. App. P. 38.1(i). Further, the trial court allowed Appellant
to ask witnesses about the agreement, and she does not explain what evidence from
the premarital agreement she was prevented from putting before the jury.
Accordingly, her argument regarding the premarital agreement is inadequately briefed.
See id. Additionally, Appellant elicited testimony from Travis about the agreement,
including his admission that he “didn’t own anything, but [Appellant] owned a lot,”
and that under that agreement, he would not receive in a divorce any property that
Appellant owned prior to the marriage. Given the record as discussed above and the
fact that Appellant was allowed to elicit testimony about the premarital agreement and
its effect, even if the agreement’s exclusion was an abuse of discretion, the exclusion
The record does not contain a divorce agreement or more than one premarital 8
agreement, either in the trial exhibits or in the exhibits offered by Appellant in her offer of proof. We assume by “the divorce and premarital agreements,” Appellant meant the premarital agreement and either the circumstances of the divorce or pleadings in the divorce case.
23 would have had a minimal effect, if any, on the jury’s verdict. Thus, we must disregard
it. See King, 953 S.W.2d at 271–73.
As for exploring the divorce, aside from the copy of Appellant’s divorce
petition, she does not tell us what evidence related to the divorce that she was
prevented from presenting to the jury. Thus, to the extent her argument refers to any
other evidence about the divorce, the argument is inadequately briefed. See Tex. R.
App. P. 38.1(i). Additionally, the record does not support her assertion that she was
prevented from presenting evidence about the divorce. Appellant was allowed to ask
Travis questions about the divorce proceeding, including the fact that, although Travis
had “brought up the assault family violence” in the proceeding and asked for sole
custody of their children, Appellant was appointed joint managing conservator, and
the two parents share custody. We overrule the remainder of her second issue.
III. Verdict Form
In her third issue, Appellant argues that the jury’s verdict is inconsistent since
both the guilty and not-guilty forms are signed. The State argues in response that
although the trial court improperly certified the jury charge, the verdict was not
inconsistent, Appellant suffered no harm, and any complaint was waived because
Appellant did not request that the jury be polled. We agree with the State.
Because Appellant did not object to the charge, we reverse only if the
complained-of charge error resulted in egregious harm. Nava v. State, 415 S.W.3d 289,
298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
24 1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19. In making an
egregious-harm determination, we must consider “the actual degree of harm . . . in
light of the entire jury charge, the state of the evidence, including the contested issues
and weight of probative evidence, the argument of counsel[,] and any other relevant
information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at
171. See generally Gelinas v. State, 398 S.W.3d 703, 708–10 (Tex. Crim. App. 2013). The
purpose of this review is to illuminate the actual, not just theoretical, harm to the
accused. Almanza, 686 S.W.2d at 174.
The trial court did not sign the charge in the place designated to certify the
charge, and the record does not reveal when the trial court signed the charge or why
the court signed in the wrong place. When a trial court certifies a charge, but the
record does not affirmatively show when the trial court signed the charge and the
matter is not disputed in the trial court, we must presume that the trial court certified
the charge before the charge was read to the jury. See Tex. R. App. P. 44.2. However,
in this case, regardless of whether the jury received a charge that was not certified or
that was certified but with a misplaced trial court signature, the record does not
support reversal.
The trial court read the charge to the jury, and no party disputes that the charge
read by the trial court was the same charge given to the jury. Unlike other parts of the
charge, the trial court’s signature (or lack thereof) did not provide a lens through
which the jury was to evaluate the evidence. See Alcoser v. State, 663 S.W.3d 160,
25 165 (Tex. Crim. App. 2022) (describing the parts of the jury charge and stating that
the charge must inform the jury of the circumstances under which it must convict or
must acquit). The other parts of the charge instructed the jury regarding the elements
of assault and provided the relevant definitions, including “bodily injury” and
“family.” The application paragraph applied those concepts to this case’s facts as
alleged in the information and instructed the jury to find Appellant guilty if it found
that she had intentionally, knowingly, or recklessly caused bodily injury to Travis, a
member of her family, by striking, grabbing, or scratching him with her hand or by
kicking him with her foot. The trial court’s signature (or lack thereof) to certify the
charge had no bearing on the charge’s instructions. This factor weighs against harm.
As for the state of the evidence, we summarized above the evidence from both
parties regarding Appellant’s guilt or innocence, and that evidence was sufficient for
the jury to find Appellant guilty. See Arrington v. State, 451 S.W.3d 834, 841 (Tex. Crim.
App. 2015) (noting that under Almanza, “we look to the state of the evidence to
determine whether the evidence made it more or less likely that the jury charge caused
appellant actual harm”). The trial court’s certification or lack thereof did not negate
that evidence or prevent the jury from considering it. This factor weighs against harm.
The remaining factors also weigh against harm. No argument by either party
drew attention to the way that the trial court had certified (or had failed to certify) the
charge or asked the jury to put any particular weight on it. After the jury returned its
verdict, the foreperson confirmed that the jury had unanimously found Appellant
26 guilty. There is no indication in the record that a missing or misplaced trial court
signature affected the jury’s verdict. Considering all the Almanza factors, we conclude
that no harm resulted from the charge’s submission to the jury with either a missing
or misplaced signature. See Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston
[1st Dist.] 2001, no pet.).
Appellant, however, contends that the trial court’s signature means that there
are two inconsistent verdicts in the case. She argues that by signing in the not-guilty
space, “[i]n essence, the trial court found Appellant Not Guilty of the charged
offense.” We disagree. Appellant opted to have a jury trial on her guilt or innocence,
the trial court clearly intended to have the jury decide the matter—it submitted the
charge to the jury and accepted the jury’s guilty verdict—and the jury charge itself
gave the task to the jury. The trial court asked the parties whether there was any
reason not to accept the jury’s verdict, and the trial court’s judgment reflects that it
was rendered on the jury’s verdict. Nothing in the record supports a conclusion that
the trial court intended its signature to constitute a not-guilty finding. Thus, we do not
have two inconsistent verdicts; we have one verdict—by the jury—of guilty.
Appellant further argues that “[i]t is possible that the jury foreman signed the
Guilty verdict form simply because there was no available signature line on the verdict
form, as the trial court had already signed that option. There is simply no way to tell.”
Appellant’s argument assumes that the jury might have found her not guilty, but
rather than sending a note to the trial court asking for clarification about its signature,
27 signing next to the trial court’s signature, or signing anywhere else under the “Not
Guilty” verdict form section, the foreperson signed the “Guilty” verdict form and
confirmed to the trial court that the jury had unanimously found Appellant guilty. The
argument has no support in the record. The foreperson signed to indicate a guilty
verdict and confirmed that it was the jury’s verdict, and nothing in the record
contradicts that confirmation. 9
We further note that to the extent the jury might have believed that the trial
court’s signature reflected the trial court’s opinion that Appellant was not guilty, the
jury ignored it, as it had been instructed to do. The charge stated,
You are instructed that you are not to allow yourselves to be influenced in any degree whatsoever by what you may think or surmise the opinion of the Court to be. The Court has no right by any word or any act to indicate any opinion respecting any matter of fact involved in this case, nor to indicate any desire respecting its outcome. The Court has not intended to express any opinion upon any matter of fact in this case, and if you have observed anything which you have or may interpret as the Court’s opinion upon any matter of fact in this case, you must wholly disregard it.
Nothing in the record indicates that the trial court’s signature may have influenced the
jury’s verdict.
9 We further note that, if the trial court signed the page before submitting it to the jury, the jury foreperson could have seen the space for the trial court’s signature on the page and surmised that the trial court had simply signed in the wrong place.
28 Finally, Appellant asserts that the trial court erred by not allowing the State to
request a poll. Appellant refers to the comment made by the trial court after asking if
either side objected to its accepting the verdict:
THE COURT: All right. Is there any reason why the Court should not accept this verdict?
[Defense attorney]: Not from the Defense, Judge.
THE COURT: Obviously not from the State either.
All right. That is the conclusion of [the jury’s] portion of this.
The prosecutor did not object, nothing indicates that the prosecutor wanted
the jury polled, and the State has not made that complaint on appeal. Because
Appellant did not request a jury poll, she may not complain that one did not occur. See
Tex. R. App. P. 33.1; Wallace v. State, No. 02-14-00427-CR, 2015 WL 5634247, at
*2 (Tex. App.—Fort Worth Sept. 24, 2015, no pet.) (mem. op., not designated for
publication).
Appellant was not harmed by the complained-of charge error. We therefore
overrule Appellant’s third issue.
Conclusion
Having overruled Appellant’s three issues, we affirm the trial court’s judgment.
29 /s/ Mike Wallach Mike Wallach Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: July 18, 2024
30 Appendix