Opinion issued September 28, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-22-00362-CR ——————————— VITO MARRUGO, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court Harris County, Texas Trial Court Case No. 1639668
MEMORANDUM OPINION
Appellant Vito Marrugo was indicted for the felony offense of burglary of a
habitation. The indictment alleged that, with the intent to commit assault, Marrugo
entered the habitation owned by Jennifer Moore without her effective consent on
July 21, 2019. See TEX. PENAL CODE § 30.02(a)(3). The indictment also contained two enhancement paragraphs alleging that Marrugo had previously been convicted
of the felony offence of robbery in 1993 and of the felony offense of possession of
a controlled substance in 2008. A jury found Marrugo guilty of the charged burglary
offense, and, after finding the enhancements paragraphs to be true, assessed his
punishment at 25 years in prison. See TEX. PENAL CODE § 12.42(d) (providing that
double-enhanced felony has minimum 25-year sentence).
In two appellate issues, Marrugo challenges his conviction (1) by contending
that the evidence was insufficient to support the jury’s guilty finding and (2) by
asserting that the trial court abused its discretion when it prohibited him from
eliciting certain testimony from Moore about her past felony convictions and about
her deferred-adjudication status. Because they are without merit, we overrule
Marrugo’s issues, and—after correcting a clerical error in the judgment sua sponte—
we affirm the trial court’s judgment as modified. See TEX. R. APP. P. 43.2(b).
Background
In July 2019, Moore lived in a house on Marine Street with her son. She and
Marrugo had been in a romantic relationship for a year and a half. At trial, Moore
testified that Marrugo “was supposed to move in with us, but he didn’t because . . .
all we ever did was fight.” She stated that Marrugo lived with his mother. Evidence
showed Marrugo’s mother lived on Havner Street. Moore testified that Marrugo
would sometimes spend the night or a weekend at her house. He kept a couple of
2 changes of clothes there but did not store clothes in a closet or in a drawer. Moore
stated that she rented the Marine Street house and that her name was on the lease.
Moore could not recall whether Marrugo’s name was also on the lease but testified
that Marrugo did not have a key to the house. Moore testified that she lived in the
house for about a year and a half. She said that Marrugo gave her “a couple hundred
dollars once” but had not otherwise provided money toward rent for the house.
Moore also testified about the events that occurred on July 21, 2019. That
night, she and Marrugo went to dinner with “his stepmom and stepdad.” They asked
Moore why her lip was split, and she told them to ask Marrugo about it. Marrugo
admitted that he had hit Moore, splitting her lip.
After dinner, Marrugo and Moore left in her car. Moore testified that, as she
drove, Marrugo became angry about being compelled to confess at dinner that he
had hit her. Marrugo grabbed the steering wheel, causing the car to sideswipe a wall.
Moore stopped the car, and Marrugo got out. Moore then drove away, leaving
Marrugo along the road. Moore drove to her house. She locked the door and grabbed
her phone. She said that her son was not there because he was staying with her
mother, who lived behind her.
Moore testified that, after she arrived home, Marrugo came to her front door
and knocked. She said that she thought that Marrugo would kill her. Moore told
Marrugo, “Please, go away, Vito. Please, go away.” Marrugo refused to leave,
3 continued knocking, and demanded that Moore open the door. Marrugo then broke
the window next to the front door with his fist, “lunged through it,” and punched
Moore in the head, causing her to fall to the floor.
In the audio from a 9-1-1 call placed by Moore, a crashing sound can be heard,
and Moore can be heard yelling repeatedly, “No, Vito, no,” and “Vito, don’t do this
to me.” The line remained open recording Marrugo’s assault on Moore. In the audio,
Marrugo can be heard telling Moore to get up and repeatedly yelling expletives at
her. Eventually, Moore’s mother arrived at the house and can be heard confronting
Marrugo about beating her daughter.
Moore testified that Marrugo had repeatedly hit her, kicked her, choked her,
and stomped on her face. A photograph of Moore’s injuries showed the imprint of
the sole of Marrugo’s shoe on her face. Moore testified that Marrugo’s beating had
caused her to black out “for a good minute.”
Deputy S. Harris, an investigator with the Harris County Sheriff’s Office,
photographed the scene, including the broken window by the front door, which had
blood on it. Deputy Harris spoke with Marrugo and with Moore at the scene. Deputy
Harris testified that Marrugo had lacerations and blood on his arms and on his shirt.
She deduced that Marrugo had cut his arms when he broke the window. Marrugo
told police, “I’ll take charges. I’ll take charges.” As recorded by Deputy Harris’s
body-worn camera, Moore told police that Marrugo had broken into her home
4 through the window and assaulted her. Moore also told Deputy Harris that Marrugo
did not live with her. She said Marrugo’s address was on Havner Street. Paramedics
arrived on the scene to treat Moore and Marrugo for their respective injuries.
At trial, the State offered the testimony of three witnesses: (1) Deputy Harris,
(2) a paramedic dispatched to the scene, and (3) Moore. The defense sought to
impeach Moore with three prior felony convictions and with her deferred-
adjudication status. Moore had been convicted of felony possession of a controlled
substance in 2015 and again in 2019. She had also been convicted of robbery in
2012. At the time of trial, Moore was on deferred adjudication community
supervision for the felony offense of child endangerment.
The State objected that the defense should not be permitted to impeach Moore
with her prior convictions because the prejudicial effect of the evidence outweighed
its probative value. The State asserted that evidence of Moore’s deferred-
adjudication status was not admissible because it was not a final conviction.
The trial court permitted Marrugo to elicit testimony from Moore on cross-
examination that she had three prior felony convictions and to ask her the year of
each conviction. The court also allowed Marrugo to elicit testimony that Moore had
received deferred adjudication for a felony. However, the trial court did not permit
the defense to ask Moore the specific names of the felony offenses for which she
5 was either convicted or on deferred adjudication. Marrugo objected to the trial
court’s exclusion of the names of the offenses.
The parties’ exhibits admitted at trial included the audio from the 9-1-1 call,
the video footage from Deputy Harris’s body-worn camera, photographs taken by
Deputy Harris at the scene, including a photograph of the broken window, and
medical records reflecting the paramedics’ treatment of Marrugo and Moore.
The jury found Marrugo guilty of the offense of burglary of a habitation.
During the punishment phase, Marrugo pleaded “not true” to the two enhancement
paragraphs in the indictment. The jury found both enhancement paragraphs to be
true and assessed Marrugo’s punishment at 25 years in prison.
This appeal followed.
Sufficiency of the Evidence
In his first issue, Marrugo contends that the evidence was not sufficient to
support his conviction.
A. Standard of Review
We review a challenge to the sufficiency of the evidence under the standard
enunciated in Jackson v. Virginia, 443 U.S. 307 (1979). See Winfrey v. State, 393
S.W.3d 763, 768 (Tex. Crim. App. 2013). Pursuant to the Jackson standard, 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
6 could have found the essential elements of the crime beyond a reasonable doubt.”
Alfaro-Jimenez v. State, 577 S.W.3d 240, 243 (Tex. Crim. App. 2019) (quoting
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)); see Jackson, 443 U.S.
at 319. We hold evidence to be insufficient under the Jackson standard when (1) the
record contains no evidence, or merely a “modicum” of evidence, probative of an
element of the offense, or (2) the evidence conclusively establishes a reasonable
doubt. Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App. 2013) (citing Jackson,
443 U.S. at 320).
The sufficiency-of-the-evidence standard gives full play to the responsibility
of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S.
at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). An appellate
court presumes that the fact finder resolved any conflicts in the evidence in favor of
the verdict and defers to that resolution, provided that the resolution is rational. See
Jackson, 443 U.S. at 326.
Our review of the record includes all of the evidence introduced, whether it
was properly or improperly admitted. See Winfrey, 393 S.W.3d at 767 (stating courts
consider admissible and inadmissible evidence presented at trial when conducting
sufficiency analysis). Direct and circumstantial evidence are treated equally;
circumstantial evidence is as probative as direct evidence in establishing the guilt of
7 an actor, and circumstantial evidence alone can be sufficient to establish guilt.
Hooper, 214 S.W.3d at 13. Finally, “[e]ach 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.” Id.
B. Analysis
As relevant here, a person commits the offense of burglary of a habitation if,
without the effective consent of the owner, he enters a habitation with the intent to
commit assault. See TEX. PENAL CODE § 30.02(a)(3).
1. “Ownership” of the Marine Street House
On appeal, Marrugo disputes the element of ownership. Essentially, he argues
that he was an “owner” of the house and cannot be guilty of burglarizing his own
residence. “The Penal Code imparts a specialized and technical meaning to the word
‘owner,’ defining it as a person who (1) has title to the property, (2) possession of
the property, or (3) a greater right to possession of the property than the actor.”
Morgan v. State, 501 S.W.3d 84, 91 (Tex. Crim. App. 2016) (citing TEX. PENAL
CODE § 1.07(a)(35)). The Penal Code defines “possession” to mean “actual care,
custody, control, or management.” TEX. PENAL CODE § 1.07(a)(39).
“The Penal Code definition of ‘owner’ clearly indicates that a defendant who
has some, but less, right to control a habitation than the alleged owner may be
prosecuted for burglary.” Morgan, 501 S.W.3d at 91. The determinative question is
8 not whether Marrugo had a right to possess the Marine Street house, but whether
Moore’s right to possess the property was greater than Marrugo’s right. See id.
Here, evidence was presented showing that Moore had a greater right of
possession of the house than did Marrugo. Moore testified that, on the date of the
offense, only she and her son lived in the Marine Street house. Although she could
not remember whether Marrugo’s name was on the house’s lease, Moore testified
that her name was on the lease. She explained that Marrugo was “suppose to” move
in with her, but he never moved in “because . . . all [they] ever did was fight.” Moore
testified that Marrugo lived with his mother. Other evidence showed his mother lived
on Havner Street.1 The body-worn camera footage showed that, at the scene, Moore
told Deputy Harris that Marrugo did not live at her house, and she gave his address
as the Havner Street address. Moore’s testimony and statement to Deputy Harris was
corroborated by Marrugo’s medical records related to the treatment of his injuries
that night. The medical records listed his address as the Havner Street address.
Moore also testified that Marrugo did not have a key to the house. Her
testimony was corroborated by evidence showing that Marrugo resorted to breaking
the window by the front door to enter the residence.
1 Marrugo’s sister testified for the defense and stated that their mother’s address was on Havner Street. 9 Moore acknowledged that, on a single occasion, Marrugo gave her a couple
hundred dollars for rent. However, we cannot conclude that this one-time payment
necessarily negated Moore’s greater right of possession to the house, which she
rented for one and a half years. Nor does the fact that Marrugo occasionally slept at
the house and kept a couple of changes of clothes there. See Aldana v. State, No. 04-
18-00369-CR, 2018 WL 6331025, at *2 (Tex. App.—San Antonio Dec. 5, 2018, no
pet.) (mem. op., not designated for publication) (concluding that appellant did not
have equal or greater right of possession than victim, even though appellant
occasionally spent night and made single contribution of $400 toward rent).
Marrugo asserts that the State failed to prove that Moore had a greater right
of possession of the Marine Street house because Moore testified that she could not
recall whether he was also named as a tenant in the lease. We disagree.
As discussed, evidence was presented affirmatively showing that Moore was
a named tenant in the lease but no evidence affirmatively showed the same was true
for Marrugo. Moreover, even assuming for the sake of argument that Marrugo was
named in the lease, the evidence demonstrated that Moore was the “owner” of the
house because she exercised actual care, custody, control, or management of the
residence. See TEX. PENAL CODE §§ 1.07(a)(35), (39). The Third Court of Appeals
reached a similar conclusion in Mack v. State, a case in which the court held that the
10 evidence was sufficient to prove the offense of burglary of a habitation, even though
the defendant had signed the lease as a cotenant:
Appellant’s position cannot withstand, on this factual record, a straightforward application of the “greater right to possession” doctrine. The record clearly shows that, at the time of the offense, [the complainant] had a greater right than appellant to custody and control of the apartment. Appellant voluntarily moved out, removed almost all of his possessions from the apartment, and began living with his parents. Appellant stopped paying rent or utilities, and [the complainant] repaid him for his portion of the deposit. Appellant agreed not to visit the apartment unless he first called for permission. Appellant’s only remaining claim to an interest in the apartment was the fact that his name remained on the lease contract. However, the greater right of possession doctrine does not credit rights that are unrealized at the time of the offense; instead, we must compare the parties’ actual rights to custody and control of the property on the date of the offense. Even if appellant could have regained possession of the apartment by virtue of his contractual rights, he had voluntarily abandoned those rights on the date of the offense and had far less right, at that time, to control of the apartment than did [the complainant].
928 S.W.2d 219, 223 (Tex. App.—Austin 1996, pet. ref’d) (citations omitted).
Similarly, here, Moore testified that Marrugo never moved in and only had a
few belongings at the house. On the night of the offense, Moore locked the door and
would not let Marrugo in despite his repeated demands and knocking on the door.
Marrugo did not have a key and forced his way in by breaking a window. Thus,
given her actual right of custody and control of the property on the date of the
offense, the evidence showed that Moore was the “owner” of the property, even if
Marrugo was on the lease. See id.; see also Davis v. State, 586 S.W.3d 586, 589
(Tex. App.—Houston [14th Dist.] 2019, pet. ref’d) (holding that, even though
11 defendant had permission to come and go from apartment as he wished, evidence
showing (1) that complainant would not let defendant into apartment when he
repeatedly pounded on door and (2) that defendant entered apartment by breaking a
window was sufficient to show that complainant was “owner” of apartment because
complainant was in possession of apartment, that is, she had actual “care, custody,
control, or management of the apartment” at time of offense).
In support of his challenge to the ownership element, Marrugo also points to
the testimony of his sister, Lisa, called by the defense. He relies on her direct-
examination testimony that Moore told her that Marrugo had moved into the Marine
Street house. She also stated that she visited Moore and Marrugo at the house and
observed Marrugo’s belongings there. However, on cross-examination, her
testimony deviated from her direct-examination testimony. On cross-examination,
Lisa testified that Marrugo had lived with their mother from 1995 until the day of
his arrest for the burglary offense, indicating that Marrugo had never resided at the
Marine Street house. Lisa then stated that Marrugo was living “between” his
mother’s house on Havner Street and Moore’s house.
The jury, as the trier of fact, is the exclusive judge of the credibility of
witnesses and of the weight to be given their testimony, and reconciliation of
conflicts in the evidence is within the exclusive province of the jury. Wyatt v. State,
23 S.W.3d 18, 30 (Tex. Crim. App. 2000). A jury may choose to believe some
12 testimony and disbelieve other testimony. Id. Thus, the jury, here, was free to believe
Moore’s testimony that Marrugo never lived in her home, to disbelieve Lisa’s
testimony to the extent it was to the contrary, and to believe the portion of Lisa’s
testimony indicating that Marrugo lived with his mother on the date of the offense.
2. Effective Consent to Enter
Marrugo also disputes the element of effective consent, asserting that the
evidence did not show that he lacked consent to enter Moore’s home. Whether a
defendant had effective consent to enter is “measured at the time of the accused’s
alleged criminal act.” Morgan, 501 S.W.3d at 92.
Moore testified that she and Marrugo argued in the car, he got out of the car,
she drove home alone, she locked the front door when she arrived home, and she
would not open the door for Marrugo when he knocked and demanded entry. She
testified that Marrugo then forced his way into her home by breaking a window. The
Court of Criminal Appeals has held that “the testimony of an owner that she did not
give permission to enter the habitation is ‘sufficient to establish the absence of
effective consent.’” Id. (quoting Ellett v. State, 607 S.W.2d 545, 550 (Tex. Crim.
App. [Panel Op.] 1980)). Here, Moore provided such testimony.
Evidence of Marrugo’s use of force to enter the home was also probative of a
lack of consent. The photographic evidence showed the broken window, and Deputy
Harris described the damage to the window. Deputy Harris also described the
13 injuries to Marrugo’s arm and the blood on his arms and shirt. She testified that
Marrugo had been injured by breaking the window with his arm. See Mims v. State,
434 S.W.3d 265, 273–74 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (holding
defendant’s kicking in front door was evidence of lack of consent).
Marrugo contends that his medical records, related to the paramedic’s
treatment of his injuries, undermined Moore’s testimony that he had broken the
window to enter her home. Specifically, Marrugo points to an entry in the record
noting that he told the paramedic that he had punched the window from inside the
home to purposefully harm himself.
On appeal, Marrugo also contends that the video footage from Deputy
Harris’s body-worn camera showed that Moore had given her consent for him to
enter the house. Early in the video footage, Moore told Deputy Harris that, on the
way home from dinner, Marrugo yelled at her in the car, grabbed the steering wheel,
and caused the car to hit a wall. She stated that Marrugo hit her after they arrived
home. At trial, Marrugo argued that Moore’s statement indicated that they had
entered the home together. But Marrugo’s argument failed to acknowledge that
Moore had immediately clarified her statement.
After Moore stated that Marrugo hit her after they arrived home, Deputy
Harris asked Moore how the window had gotten broken. Moore responded that she
had left Marrugo alongside the road and had driven home alone. She said that
14 Marrugo arrived at her house and banged on the door. She explained that Marrugo
entered her home by breaking the window and then began beating her. On further
questioning by the officers at the scene, Moore continued to state that she arrived
home alone and that Marrugo had entered her home by breaking the window.
We are mindful that, when there is a conflict in the evidence, we presume that
the jury, as the trier of fact, resolved the conflict in favor of the judgment. See Merritt
v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App. 2012). Thus, any conflict in the
evidence regarding how Marrugo injured his arm or whether Moore and Marrugo
entered the home together was for the jury to resolve, and we presume it did so in
favor of the judgment. See id.; see also Rangel v. State, 179 S.W.3d 64, 69 (Tex.
App.—San Antonio 2005, pet. ref’d) (holding that jury was free to believe
complainant-owner’s statement to police on date of offense that defendant did not
have consent to enter home on day of burglary, and to disregard complainant-
owner’s inconsistent testimony that defendant “always” had permission to enter).
3. Conclusion: evidence was legally sufficient
We conclude that a rational jury could have found beyond a reasonable doubt
that Moore was the “owner” of the house at the time of the offense. See TEX. PENAL
CODE § 1.07(a)(35). We also conclude that a rational jury could have found beyond
a reasonable doubt that Marrugo entered the house without Moore’s effective
consent. See Morgan, 501 S.W.3d at 92; Rangel, 179 S.W.3d at 69 (concluding
15 evidence was sufficient to establish lack of consent where appellant previously had
been given access to residence, but owner testified that accused was not given
permission to enter on day of offense). Accordingly, we hold that the evidence was
legally sufficient to support the judgment of conviction for the offense of burglary
of a habitation.
We overrule Marrugo’s first issue.
Admission of Impeachment Evidence
In his second issue, Marrugo contends that the trial court abused its discretion
when it excluded (1) the names of the offenses for Moore’s three prior convictions
and (2) the name of the offense for which she received deferred adjudication.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The
trial court does not abuse its discretion unless its determination lies outside the zone
of reasonable disagreement. Id.
B. Felony Convictions
Assuming, without deciding, that the trial court abused its discretion by
excluding the names of the three offenses for which Moore was convicted—that is,
not permitting the jury to hear that Moore’s prior convictions were for drug
possession and robbery—we conclude that any error in doing so was harmless.
16 Generally, the erroneous admission or exclusion of evidence is non-constitutional
error reviewed under the harmless-error standard in Rule of Appellate Procedure
44.2(b). See Potier v. State, 68 S.W.3d 657, 665 (Tex. Crim. App. 2002). However,
the exclusion of evidence may rise to the level of constitutional error if the excluded
evidence “forms such a vital portion of the case that exclusion effectively precludes
the defendant from presenting a defense.” Id.
Here, the record reflects that Marrugo defended against the burglary offense
by pointing to evidence that he claimed showed that Moore was not the owner of the
house and that she had given him consent to enter. Moreover, as discussed below,
Marrugo was permitted to elicit impeachment evidence bearing on Moore’s
credibility. Thus, the record does not reflect that the exclusion of the names of
Moore’s prior offenses prohibited Marrugo from presenting a defense, and we
conclude that the harmless-error standard in Rule 44.2(b) applies.
Under Rule 44.2(b), any non-constitutional “error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded.” TEX. R. APP. P.
44.2(b). “A substantial right is affected when the error had a substantial and injurious
effect or influence in determining the jury’s verdict.” Schmutz v. State, 440 S.W.3d
29, 39 (Tex. Crim. App. 2014) (citing Motilla v. State, 78 S.W.3d 352, 355 (Tex.
Crim. App. 2002)). In assessing the likelihood that the jury’s decision was adversely
affected by the error, an appellate court considers everything in the record. Id. This
17 includes testimony, physical evidence, jury instructions, the State’s theories, any
defensive theories, closing arguments, and voir dire, if applicable. Id. Important
factors include the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in
the case and may include whether overwhelming evidence of guilt was present.
Gonzalez v. State, 544 S.W.3d 363, 373 (Tex. Crim. App. 2018).
After reviewing the entirety of the record, we are convinced that the exclusion
of the names of the offenses committed by Moore did not have a substantial and
injurious effect or an improper influence on the jury’s verdict. The trial court
permitted the defense to elicit testimony from Moore that she had a felony conviction
in 2012, a second felony conviction in 2015, and a third in 2019. The jury also heard
that Moore had received deferred adjudication for a fourth felony. In other words,
the jury knew that Moore, a three-time convicted felon on deferred adjudication for
a fourth offense, had a propensity for breaking the law.
With respect to considering Moore’s convictions, the trial court’s charge
instructed the jury as follows:
You are further instructed that any evidence that any witness has been charged or convicted of any crime was admitted before you for the purpose of aiding you, if it does aid you, in passing upon the credibility of the witness and the weight to be given his testimony, and you will not consider the same for any other purpose.
18 Based on this instruction, the jury was permitted to consider Moore’s felony
convictions when assessing her credibility. Knowing the names of Moore’s offenses
would have added little to that assessment in this case. The two drug offenses had
low impeachment value because possession of a controlled substance does not
involve deception nor is it a crime of moral turpitude. See Valmana v. State, 605
S.W.3d 490, 505 (Tex. App.—El Paso 2020, pet. ref’d). The offense of robbery
contains certain elements of deception and violence, Leyba v. State, 416 S.W.3d 563,
572 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d), but Moore’s robbery
conviction was the oldest of three convictions, lessening its impact. Without
knowing the names of the offenses, the jury was left to wonder about the nature of
the offenses and whether Moore had committed offenses with higher degrees of
deception or violence than the actual offenses of which she was convicted. Thus, as
the State points out, the defense may have actually benefitted from the exclusion of
the names of the offenses.
Moreover, as discussed, ample evidence was admitted corroborating Moore’s
testimony. The record showed that Marrugo’s arms were cut by the glass, and he
admitted to breaking the window. The 9-1-1 audio captured the incident, including
a crashing sound at the beginning of the call along with Moore’s pleas for Marrugo
to stop assaulting her. And, as Moore testified, Marrugo’s medical records indicated
that his address was not the Marine Street house. Even portions of defense witness
19 Lisa’s testimony corroborated Moore’s testimony that Marrugo never resided at the
Marine Street house.
After examining the record as a whole, we conclude that the exclusion of the
names of the offenses of which Moore was convicted did not affect Marrugo’s
substantial rights because we have a fair assurance that the error did not influence
the jury or had but a slight effect. See Motilla, 78 S.W.3d at 355. We hold that any
error in excluding the evidence was not harmful error. See TEX. R. APP. P. 44.2(b).
C. Deferred-Adjudication Offense
At the time of trial, Moore was on deferred adjudication for the felony offense
of child endangerment. The State objected to Marrugo eliciting testimony from
Moore about her deferred-adjudication status. The trial court overruled the State’s
objection and allowed Marrugo to elicit testimony from Moore that she was currently
“on deferred adjudication” for a felony. However, the trial court did not permit
Marrugo to elicit the name of the offense. Marrugo objected to the exclusion of the
offense’s name. On appeal, Marrugo contends that he should have been permitted to
elicit testimony from Moore that the deferred offense was for child endangerment.
Generally, if certain criteria are met, evidence of a conviction may be elicited
from a witness for the purpose of attacking the witness’s credibility. See TEX. R.
EVID. 609(a). Deferred adjudication is not a conviction. Beedy v. State, 194 S.W.3d
20 595, 599–600 (Tex. App.—Houston [1st Dist.] 2006) aff’d, 250 S.W.3d 107 (Tex.
Crim. App. 2008).
At trial, Marrugo asserted that he could impeach Moore with her deferred-
adjudication status because it showed that she was biased and motivated to testify
favorably for the State. But a witness’s “mere status” of being on deferred
adjudication community supervision is not sufficient, by itself, to establish a
potential bias or motive to testify favorably for the State. See Irby v. State, 327
S.W.3d 138, 152 (Tex. Crim. App. 2010). Instead, to cross-examine a witness about
her deferred-adjudication status, the proponent of the evidence must establish some
causal connection or logical relationship between the witness’s probationary status
and the witness’s potential motive to testify for the State. See id. at 148–49. In other
words, the proponent of the evidence must “show a logical connection between the
fact or condition that could give rise to a potential bias or motive and the existence
of any bias or motive to testify.” Id. at 149–50; see also Juneau v. State, 49 S.W.3d
387, 390 (Tex. App.—Fort Worth 2000, pet. ref’d) (noting that “[a]ppellant must
make some showing that [the witness’s] version of the facts might be a result of his
deferred adjudication status”). In short, a party seeking to introduce evidence of a
witness’s deferred-adjudication status who cannot establish a causal connection has
essentially failed to demonstrate that the evidence he seeks to introduce is relevant
21 to the allegation of bias. See Johnson v. State, 433 S.W.3d 546, 552 (Tex. Crim.
App. 2014).
Here, Marrugo did not offer or seek to offer any evidence to show a causal
connection between Moore’s deferred-adjudication status and any bias or motive she
had to testify for the State. Thus, because it would not have been an abuse of
discretion for the trial court to exclude evidence of Moore’s deferred-adjudication
status altogether, it follows that it was not an abuse of discretion for the trial court
to exclude the name of the offense for which Moore received deferred adjudication.
See Irby, 327 S.W.3d at 147–48; see also Chauncey v. State, No. 14-17-00327-CR,
2018 WL 3237154, at *4 (Tex. App.—Houston [14th Dist.] July 3, 2018, no pet.)
(mem. op., not designated for publication) (holding that trial court did not abuse its
discretion in excluding evidence of witness’s deferred adjudication because
appellant failed to offer evidence of “logical connection between [witness’s]
deferred adjudication and his possible motive to curry favor with the prosecution”).
We overrule Marrugo’s second issue.
Modification of Trial Court’s Judgment
We raise a third issue sua sponte: our review of the record revealed a clerical
error in Marrugo’s judgment of conviction. Specifically, although the jury charge
reflects that the jury found both enhancement paragraphs in the indictment to be true,
the judgment incorrectly states that the jury found them to be not true.
22 This Court has the authority to modify a judgment to make the record speak
the truth when we have the necessary information before us to do so. See TEX. R.
APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993);
Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st Dist.] 2001, no pet.).
Our authority “to reform incorrect judgments is not dependent upon the request of
any party, nor does it turn on the question of whether a party has or has not objected
in the trial court.” Munguia v. State, 636 S.W.3d 750, 756 (Tex. App.—Houston
[14th Dist.] 2021, pet. ref’d). Rather, “[an] appellate court may act sua sponte and
may have the duty to do so.” Asberry v. State, 813 S.W.2d 526, 530 (Tex. App.—
Dallas 1991, pet. ref’d) (en banc). Accordingly, we modify the trial court’s judgment
to reflect that the jury found the first and second enhancement paragraphs in the
indictment to be true.
Conclusion
As modified, we affirm the judgment of the trial court.
Richard Hightower Justice
Panel consists of Chief Justice Adams and Justices Hightower and Countiss.
Do not publish. Tex. R. App. P. 47.2(b).