Unreported / Non-Citable
Background
A jury convicted Dominick Xavier Rubio of aggravated assault of a public servant, a first-degree felony under Texas Penal Code § 22.02(b)(2)(B), and the trial court sentenced him to fifty years’ imprisonment. The conviction stemmed from a September 5, 2023, encounter in San Antonio where Officer Jose Bernal Rodriguez attempted to apprehend Rubio, who had an active warrant for aggravated assault with a deadly weapon. When Officer Bernal activated his emergency lights and exited his patrol vehicle, Rubio fled on his bicycle, then on foot after falling. During the pursuit, Rubio assumed a shooting stance and discharged a firearm, striking Officer Bernal in the arm and causing over thirty pellet-sized wounds to his stomach. Officer Bernal required a blood transfusion, emergency surgery, and a four-day hospitalization.
Multiple witnesses and video evidence captured the incident and aftermath. A resident, Barbara Villarreal, recorded Rubio fleeing through her backyard barefoot and holding a silver shotgun. SAPD Officer David Below observed Rubio from a helicopter entering his residence. Detective Matthew Flores encountered Rubio advancing toward him with the shotgun in a “ready-to-fire position,” prompting Flores to discharge his own weapon before Rubio scaled a fence and retreated into his home, where he was eventually apprehended. Crime scene investigators recovered the 20-gauge shotgun from inside Rubio’s oven, along with spent shell casings, ammunition, backpacks, and Officer Bernal’s damaged body armor. Forensic Scientist Mary Bowen conducted a gunshot residue evaluation, finding microscopic particles containing lead, barium, and antimony on Rubio’s hands, leading her to conclude he may have discharged a firearm, handled a discharged firearm, or been in proximity to one.
The Court’s Holding
The Thirteenth Court of Appeals affirmed the judgment, rejecting all three issues raised on appeal. First, the court held that the trial court did not abuse its discretion in admitting State’s exhibits 53–73, 76, 78, 79, and 80–83, which included backpacks, ammunition, a lunchbox filled with ammunition, photographs of the shotgun’s serial number, spent shell casings, and Officer Bernal’s vest and belt. Although Rubio failed to object to some of these exhibits under Texas Rules of Evidence 401 or 403, thereby failing to preserve error as to those specific items, the court addressed them collectively for judicial economy. Applying the abuse-of-discretion standard, the court found the evidence relevant under Rule 401 because it placed Rubio at the scene and connected him to the shotgun and ammunition used to shoot Officer Bernal. The court further held that the probative value was not substantially outweighed by the danger of unfair prejudice under Rule 403, rejecting Rubio’s argument that the evidence implied he was “heavily armed and predisposed to violence.” Instead, the court reasoned, the evidence demonstrated Rubio’s access to and familiarity with the weapon capable of causing the officer’s injuries, and the State needed this evidence to prove identity and culpable mental state.
Second, the court overruled Rubio’s challenge to Mary Bowen’s expert testimony under Rule 702, finding he failed to preserve error. Rubio objected at trial that Bowen was “not qualified” but did not specify any particular deficiency in her qualifications or the reliability of her opinions, as required to preserve a complaint for appellate review. Moreover, after the State qualified Bowen and she discussed her training, Rubio proceeded to cross-examine her without obtaining a ruling on his objection from the trial court. The court also noted that Rubio did not raise a Rule 403 objection to Bowen’s testimony at trial, waiving that complaint as well.
Third, because the court found no error in the admission of evidence or the expert testimony, it overruled Rubio’s cumulative-error claim, citing the principle that non-errors cannot accumulate to create reversible error.
Key Takeaways
- Physical evidence linking a defendant to the crime scene and weapon—including backpacks, ammunition, and photographs of a firearm’s serial number—is relevant under Rule 401 to prove identity and access to the instrumentality of the offense, and its probative value is not substantially outweighed by unfair prejudice merely because it suggests the defendant was armed.
- To preserve a challenge to an expert’s qualifications under Rule 702, a party must object with specificity, detailing the particular deficiency in the expert’s qualifications or the reliability of the opinions; a general objection that the witness is “not qualified” is insufficient.
- Failure to obtain a ruling from the trial court on an objection, or abandoning the objection by proceeding to cross-examine the witness after the court qualifies the expert, forfeits appellate review of the expert’s testimony.
- Cumulative-error claims fail when the underlying individual claims of error are overruled, as non-errors cannot accumulate to create reversible error.
Why It Matters
This memorandum opinion reinforces the stringent preservation requirements under Texas Rule of Appellate Procedure 33.1, particularly regarding expert testimony and evidentiary objections. Defense attorneys must articulate specific deficiencies in an expert’s qualifications or methodology at trial and secure a ruling from the court; general objections or failure to pursue the matter after the witness is qualified will result in waiver. The decision also illustrates the deferential abuse-of-discretion standard applied to Rule 403 balancing, confirming that evidence of a defendant’s possession of weapons and ammunition is generally admissible to prove identity and intent in assault cases, even if it portrays the defendant in a negative light, provided it does not suggest decision on an improper emotional basis.