CROSSOVER: Aggravated Assault ‘Family Member’ Conviction: Drug-Use Impeachment Excluded; Confrontation/Due-Process Complaint Waived Under Rule 33.1

Angel Serna v. The State of Texas, 07-25-00227-CR, March 20, 2026.

On appeal from 364th District Court, Lubbock County, Texas

Synopsis

The Seventh Court of Appeals affirmed an aggravated-assault “family member” conviction, holding the defendant did not preserve a constitutional confrontation/complete-defense complaint about excluded impeachment evidence of the complainant’s alleged methamphetamine use because trial counsel argued only relevance/state-of-mind at trial—not constitutional grounds. The court also rejected an ineffective-assistance claim at punishment because the record did not rebut the presumption of reasonable strategy or show prejudice from not calling additional mitigating witnesses.

Relevance to Family Law

Family cases routinely turn on credibility battles, impeachment rulings, and “complete defense” themes—especially in protective-order proceedings, SAPCR disputes involving family violence, and divorce cases where a parent’s drug use is offered to explain volatility or justify restrictions. Serna is a procedural-warning case for family litigators: if you want to complain on appeal that exclusion of drug-use evidence violated confrontation/due process or your client’s right to present a complete defense, you must say that—explicitly—at trial and obtain a ruling. The opinion also underscores how hard it is to win an ineffective-assistance-style complaint on a cold record; in family court, the parallel is appellate review of “trial-strategy” choices (witness selection, impeachment, and defensive theories) under abuse-of-discretion and preservation doctrines.

Case Summary

Fact Summary

The complainant and the defendant were first cousins living next door to each other, with an ongoing contentious relationship marked by accusations and threats. On the morning of March 5, 2024, the complainant was in his backyard when he heard a gate open, turned, and was shot in the face. The complainant testified he saw the defendant standing over him attempting to fire again; the complainant’s son witnessed the shooting and struggled with the defendant over the gun until an uncle intervened and the defendant left. Police quickly detained the defendant, who admitted the shooting and led officers to the firearm.

At trial, the defense attempted to introduce evidence that the complainant had used methamphetamine in the past, that the defendant had witnessed that use, that the defendant recognized the complainant’s behavior when under the influence, and that the defendant observed such behavior the morning of the shooting. The defense theory (as framed in the trial colloquy) was that this evidence was relevant to the defendant’s fear and state of mind—i.e., why he acted when he did.

Issues Decided

• Whether exclusion of evidence of the complainant’s alleged methamphetamine use violated the defendant’s confrontation and “complete defense” constitutional rights, and whether that complaint was preserved for appellate review.
• Whether trial counsel rendered ineffective assistance at punishment by failing to call additional mitigating witnesses (and, in a passing reference, by failing to request a self-defense instruction).
• (Mentioned in the opinion excerpt) Whether the trial court erred by failing to hold a hearing on the motion for new trial.

Rules Applied

• Error Preservation: TEX. R. APP. P. 33.1(a) (timely, specific objection; obtain a ruling).
• Complaint on appeal must comport with trial objection: Thomas v. State, 723 S.W.2d 696 (Tex. Crim. App. 1986) (en banc).
• Evidentiary rulings standard of review (when preserved): abuse of discretion; Henley v. State, 493 S.W.3d 77 (Tex. Crim. App. 2016).
• Confrontation / complete-defense rights are waivable by procedural default: Anderson v. State, 301 S.W.3d 276 (Tex. Crim. App. 2009); Broxton v. State, 909 S.W.2d 912 (Tex. Crim. App. 1995) (en banc).
• Ineffective Assistance: Strickland v. Washington, 466 U.S. 668 (1984); applied through Texas cases emphasizing the presumption of reasonable strategy and the need for a developed record: Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999); Bone v. State, 77 S.W.3d 828 (Tex. Crim. App. 2002); Ortiz v. State, 93 S.W.3d 79 (Tex. Crim. App. 2002) (en banc).
• Defensive-instruction strategy: Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998) (en banc).

Application

On the excluded meth-use evidence, the court treated the appeal as a preservation case—not an evidence case. The defendant reframed the trial court’s exclusion as a constitutional violation (confrontation and the right to present a meaningful, complete defense). But the trial record reflected a different theory: trial counsel argued the evidence was admissible to show the defendant’s state of mind—what “was going through his mind” because he was afraid of the complainant. The trial court even confirmed it understood the offer as a state-of-mind theory. Because counsel did not articulate a constitutional basis (due process, confrontation, compulsory process, “complete defense”) and did not secure a ruling on that constitutional ground, Rule 33.1 barred the constitutional complaint on appeal.

On ineffective assistance at punishment, the defendant relied on affidavits attached to a motion for new trial, describing additional mitigation witnesses who would have testified the defendant was hardworking, nonviolent, and fearful of the complainant due to harassment. The court emphasized two recurring problems for direct-appeal ineffectiveness: (1) a silent record generally cannot overcome the presumption that counsel made a strategic choice about which witnesses to call, and (2) the defendant must show a reasonable probability of a different outcome. Here, much of the “new” mitigation was cumulative of trial testimony already presented (including character testimony and evidence of neighborhood conflict), and the record did not explain why counsel declined to call the extra witnesses. Without record development of counsel’s reasons—and without a prejudice showing—the claim failed.

Holding

The court held the defendant’s constitutional confrontation/complete-defense complaint regarding excluded drug-use evidence was not preserved because the trial objection and offer of proof framed the evidence as relevant to state of mind, not as constitutionally required impeachment or a constitutional right-to-present-a-defense issue; therefore, Rule 33.1 procedural default applied and the appellate court would not reach the merits of the constitutional claim.

The court also held the ineffective-assistance claim at punishment failed on direct appeal because the record did not rebut the presumption of reasonable trial strategy for not presenting additional mitigating witnesses and did not show prejudice, particularly where the proposed testimony was largely cumulative and no developed explanation of counsel’s choices appeared in the record.

Practical Application

Texas family-law trials regularly feature excluded impeachment evidence—substance use, mental-health allegations, and “pattern of aggression” narratives—offered to explain a party’s fear, justify protective relief, or support restrictions on possession and access. Serna is a reminder that preservation is theory-specific: “relevance” and “state of mind” objections do not preserve “constitutional confrontation / complete-defense” complaints for appeal.

In a SAPCR or protective-order hearing, if you are trying to admit evidence of the opposing party’s drug use to (a) impeach credibility, (b) show motive/bias, (c) demonstrate perception/ability to recall, or (d) support a constitutional right to meaningfully confront the witness, you should make that clear on the record, with an offer of proof and a ruling. Likewise, if evidence is excluded and you believe it prevents you from putting on a “complete defense” to family-violence allegations that will drive conservatorship outcomes, you must articulate the constitutional dimension contemporaneously—not later in the notice of appeal or appellate briefing.

Finally, Serna’s ineffectiveness analysis maps onto family-law appellate realities: complaints about “we should have called more witnesses” are hard to win without record development showing both (1) why trial counsel’s choices were unreasonable and (2) how the outcome probably would have changed—especially where the omitted testimony is cumulative of what the judge already heard.

Checklists

Preserving a “Complete Defense” / Confrontation Theory (Family-Violence and SAPCR Trials)

• Clearly state the constitutional grounds: Sixth Amendment confrontation, Fourteenth Amendment due process, and Texas constitutional analogs as applicable
• Tie the excluded evidence to a recognized impeachment/defense purpose (bias, motive, perception, credibility, alternative narrative)
• Request a ruling on the constitutional objection, not just an evidentiary relevance ruling
• Make an offer of proof (question-and-answer preferred) establishing what the testimony would be and why it matters
• If the court excludes, ask the court to confirm on the record the scope of the exclusion (topics, witnesses, exhibits)
• Re-urge the complaint if the trial context changes (e.g., opposing party “opens the door”)

Building an Appellate-Safe Offer of Proof on Drug-Use Evidence

• Identify the timeframe (recent use vs. remote history) and connect it to the event in dispute
• Proffer the basis of knowledge (personal observation, admissions, treatment records, criminal history, third-party witness)
• Explain the theory of admissibility (impeachment, perception/recall, motive, bias, state of mind, or rebuttal)
• Address Rule 403 balancing proactively (probative value vs. unfair prejudice/confusion)
• Where appropriate, request a limiting instruction (e.g., “credibility only”) to reduce 403 risk
• Ensure the record shows why the evidence is not merely character assassination, but linked to a contested fact

Avoiding “Silent Record” Problems on Post-Trial Complaints (Motions for New Trial)

• If claiming counsel error (or the family-law analogue: harmful exclusion that materially affected the outcome), develop a record through:
• Live testimony at an evidentiary hearing, if available
• Affidavits that are translated and authenticated where required
• Specific, non-cumulative facts showing outcome impact
• Where strategy could explain the choice (not calling witnesses, not requesting an instruction, not pursuing an impeachment line), obtain record evidence of:
• What counsel investigated
• Why counsel chose a different route
• How the omitted evidence would probably have altered the result
• Make sure any non-English affidavits are accompanied by competent translations to avoid record-use problems

Citation

Angel Serna v. State of Texas, No. 07-25-00227-CR (Tex. App.—Amarillo Mar. 20, 2026) (mem. op.).

Full Opinion

Read the full opinion here

Family Law Crossover

Although Serna is a criminal appeal, the tactic it enables (and the trap it exposes) shows up constantly in divorce and custody litigation: one side seeks to introduce drug-use evidence to undermine the other side’s credibility, explain fearful behavior, or prove a volatility pattern relevant to family violence and best interest. The “weaponization” angle is procedural—opposing counsel can force you into a narrow evidentiary fight (relevance/state of mind) and then, if you lose, defend the ruling on appeal by arguing you never preserved the stronger constitutional framing (meaningful opportunity to confront and present a complete defense). Conversely, if you are the proponent of the excluded evidence, Serna teaches you to lock in appellate posture by expressly raising the constitutional basis, making a clean offer of proof, and obtaining a ruling—so the case cannot later be defended as a mere relevance call insulated by Rule 33.1.

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