Nathan G. Mims v. State, 2014 Tex. App. LEXIS 4450

Appellant Nathan Mims was charged with evading arrest, two counts of burglary of a habitation, aggravated assault on a public servant, and possession of marijuana; the latter two were dismissed at trial, and the case proceeded on evading arrest and burglary.
Mims pleaded guilty to evading arrest; a jury found him guilty of burglary of a habitation and he was sentenced to ten years and 16 years respectively, with appeals challenging multiple trial rulings.
Irving Guenther testified that a burglar broke into his home, fled, and that Mims led a car pursuit across multiple agencies before being apprehended.
Irving identified Mims in a photo lineup and at trial; Irving’s mother Araceli testified that she did not authorize entry, though she acknowledged possible involvement of others.
Mims challenged the constitutionality of section 38.04, arguing it punished the same conduct at two levels; the court determined amendments prior to trial were superseded and rejected the argument.
The court addressed voir dire limitations, cross-examination restrictions, admissibility of pre-trial identification, sufficiency of the burglary evidence, extraneous-offense instructions, and prosecutorial arguments, upholding most rulings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutionality of 38.04(b) punishment levels	Mims argues SB496 created two punishments for same conduct.	State contends SB1416 repealed the challenged provisions.	Statute later amended; SB1416 supersedes SB496; not unconstitutional.
Limitation of voir dire on mitigation/ aggravation	Mims needed broad questions to challenge causing factors.	Court properly limited to avoid commitment to mitigating factors.	No abuse of discretion; voir dire limitation stands.
Cross-examination of witnesses to prove defenses	Defendant should elicit responses to support defenses of consent/intent.	Trial court limited questions; offers of proof were not preserved.	Error not preserved; rulings affirmed.
Admissibility of pre-trial photo lineup	lineup impermissibly suggestive due to selection.	Six photos fit general description; no impermissible suggestiveness.	No reversible error; lineup not impermissibly suggestive.
Directed verdict and sufficiency of burglary evidence	Insufficient evidence of lack of consent or intent to steal.	Evidence showed lack of consent and intent to commit theft.	Evidence supports conviction beyond reasonable doubt; no directed-verdict error.

State v. Rosseau, 396 S.W.3d 550 (Tex. Crim. App. 2013) (presumption of validity; facial challenges require de novo review)
Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002) (statutory validity presumption and burden on challenge)
Lykos, 330 S.W.3d 899 (Tex. Crim. App. 2010) (facial challenges; burden on movant)
Karenev v. State, 281 S.W.3d 428 (Tex. Crim. App. 2009) (facial review of statutes)
Standefer v. State, 59 S.W.3d 177 (Tex. Crim. App. 2001) (prohibition on open-ended mitigating questions)
Raby v. State, 970 S.W.2d 1 (Tex. Crim. App. 1998) (trial court not abuse in restraining certain cross-examination)
Gamboa v. State, 296 S.W.3d 574 (Tex. Crim. App. 2009) (de novo review of pre-trial identification suggestiveness)
Barley v. State, 906 S.W.2d 27 (Tex. Crim. App. 1995) (lineup not automatically suggestive; totality of circumstances)
Luna v. State, 268 S.W.3d 594 (Tex. Crim. App. 2008) (lineups need not be identical; factual similarity suffices)
Buxton v. State, 699 S.W.2d 212 (Tex. Crim. App. 1985) (pre-trial lineup not unduly suggestive where descriptions fit)
Mays v. State, 285 S.W.3d 884 (Tex. Crim. App. 2009) (offer of proof required to preserve error)
Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) (jurisdictional standard for jury-charge error harm analysis)