Denise Rochelle Ross v. State ( 2018 )

Affirmed as modified; Opinion Filed August 20, 2018.
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00346-CR
DENISE ROCHELLE ROSS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-15-75745-Q
MEMORANDUM OPINION
Before Justices Lang-Miers, Evans, and Schenck
Opinion by Justice Evans
A jury convicted Denise Rochelle Ross of felony murder and assessed punishment at sixty
years’ confinement and a $10,000 fine. In three issues, appellant argues the evidence is insufficient
to prove she committed the predicate felony of practicing medicine without a license. The State
brings a cross-issue requesting we reform the trial court’s judgment to reflect that the jury made
an affirmative deadly-weapon finding. After reviewing the record, we modify the trial court’s
judgment as requested and affirm the trial court’s judgment as modified.
BACKGROUND
On the morning of February 19, 2015, Wykesha Reid was found dead lying on a table in a
room inside a salon at 3815 East Side Avenue, near the Deep Ellum area of Dallas. Reid was
found by “Alicia,” who called 9-1-1. Investigation revealed that Reid had received silicone
injections in her buttocks probably between four and eighteen hours before the body was found.
Some of the silicone had entered Reid’s blood and caused a pulmonary embolism resulting in her
death. Appellant was ultimately charged with causing Reid’s death by injecting her with silicone.
The salon where Reid was found was leased about one or two months earlier by Deshonte
Robinson and her boyfriend, Keith Walker. Robinson was an eyelash extension technician who
had known appellant, whom she called “Wee Wee,” for about seven years. Robinson testified
appellant approached her about finding a shop and offered to help pay the rent. According to
Robinson, when appellant made this offer, appellant was working doing “butt injections.”
Robinson had witnessed appellant performing the injections with Alicia at a house in the Oak Cliff
area of Dallas. Robinson ultimately found the 3815 East Side location, and Walker co-signed the
lease for the property because he had better credit. There was one private room in the salon, but
Robinson did not work in it. She worked in the main area of the salon. According to Robinson,
appellant and Alicia used the private room to perform injections. Robinson, Alicia, and appellant
each had a key to the salon.
Robinson testified that she arrived at the salon about 5:30 p.m. on February 18, 2015 to
meet a lash client. The door to the private room was closed, and there were other people unfamiliar
to Robinson sitting in the waiting area. Robinson first saw appellant that night when she came out
of the private room around 6:30 and asked Robinson to turn up the volume on the radio. Appellant
then returned to the room. About thirty to forty-five minutes later, appellant came back out and
told those in the waiting area to leave and asked Robinson to ask her client to leave because the
owner called and complained the music was too loud. Robinson questioned appellant as to why
the owner would call appellant. Robinson told her client she would finish her in the morning, and
appellant offered to pay for the lashes. While Robinson was cleaning up, appellant told her she
could leave too, so she got her stuff together and went home.
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Robinson called appellant the next morning around 7:00 a.m. and asked if everything was
okay at the shop. Appellant said everything was okay, but told Robinson not to go back because
Alicia had told her a lady had had a seizure. When Robinson asked if the lady was okay, appellant
responded she did not know because she was not there. Although Robinson never saw Alicia the
night of February 18, she knew she was at the shop because she saw her car outside.
Reid’s daughter, Keaira Reid, testified that her mother received injections in her buttocks
several times to enhance her body. Keaira once went with her mother to what she believed was a
Deep Ellum location where Reid received injections, but Keaira waited outside in their truck for
about three hours while her mother and some of her mother’s coworkers went into the building.
When they got home, Keaira saw that Reid had cotton balls glued to her buttocks and was wearing
a “booty girdle.” On February 18, 2015, the day before her body was discovered in the salon, Reid
picked Keaira up from work and dropped her off at home at around 6:00 p.m. Reid then left and
never returned. The next day, the police came to their home and told Keiara her mother had died.
There was evidence that appellant, who several witnesses knew as “Wee Wee,” was in the
business of providing what was described as a “Wee Wee booty” by injecting people’s buttocks.
Individuals who had received injections would refer others to appellant who would then arrange
the location, time, and price for the procedure. Appellant and Alicia worked together performing
injections as described by at least two witnesses.
Vivian Martinez testified she learned about appellant through a coworker. She was told
appellant did “butt injections” and was given appellant’s number in 2012. She called the number
in 2015 to get injections because she wanted “a bigger butt.” Appellant answered the phone and
told her the injections were “water based and it was saline.” When she was ready to get the
procedure done, Martinez called appellant in the morning and scheduled an appointment for that
evening. Appellant gave her the address, quoted a price of $520, and Martinez set up an
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appointment time. Appellant identified herself as “Wee Wee” on both calls. Martinez confirmed
the location where she received injections in her buttocks was 3815 East Side in Dallas. After
Martinez arrived at the location, she called appellant and a person she later learned was called
Alicia, escorted her into the salon. Martinez paid appellant $520 cash at the front desk and waited
her turn. Martinez then went into the private room. There was another woman who was laying on
a table face down. Martinez laid face down on the other table in the room after removing her
clothes from the waist down. Alicia was on Martinez’s right side and appellant was on her left.
She had three injections on each side. After the injections, Martinez received a sheet of paper with
aftercare instructions, cotton balls, and tube of super glue. Later that week, she learned on the
television news about Reid who died at the same salon where she had just received her injections.
Martinez contacted the police and went to the hospital to get checked out.
Lauren Johnson also received injections in her buttocks from appellant. Johnson testified
that her friend, Mia, referred her to appellant. When Johnson had the money and was ready to get
them, Mia gave her appellant’s phone number, which Johnson confirmed at trial ending in 7982.
Johnson called the number and received an address to go to. Johnson drove from Houston to a
home in South Dallas to get the injections. It was close to midnight when Johnson called appellant
to say she had arrived at the location. Johnson was let into the home while her boyfriend, who
drove with her from Houston, waited in the car. Johnson waited her turn with other people who
were there to get “butt injections.” Appellant and a person she later learned was called “Alicia”
were both performing injections on a woman on a massage table in the dining room of the home.
Appellant was on the left side of the woman and Alicia was on the woman’s right side. Another
man was positioned at the woman’s feet at the end of the massage table. The unidentified man
was sucking up material from a container into syringes and placing them between the thighs of the
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person on the table. Both appellant and Alicia worked together injecting the material in the
syringes into the person on the table.
Johnson spoke to appellant before she had the injections. Appellant confirmed the price
with Johnson and then explained the procedure and aftercare. Johnson paid $500 for the injections.
She was told that she was being injected with “grade A medicated silicone.” She wore a girdle
with cutouts for the buttocks for about a week to help form the shape, and she had to put super
glue, then cotton balls, on the injection sites until they stopped leaking. There were multiple
syringes injected at each injection site. Johnson described the pain as worse than child birth and
said Alicia gave her a Dum Dum sucker after Johnson told her she was sick to her stomach.
Johnson said having appellant do the injections was referred to as having a “Wee Wee booty.”
Johnson testified that it was very obvious appellant was in charge. Johnson agreed that she got the
injections because she felt like her bottom was small and she wanted it bigger. She did not perceive
her bottom as being deformed.
In her call to 9-1-1 on the morning of February 19, Alicia told the dispatcher that she was
with Reid at the shop “last night” and Reid said she felt sick. Alicia left Reid laying down at the
shop and returned in the morning to find Reid “not moving” and “cold and hard.” Police arrived
at the scene shortly thereafter. Patrol officer Jay Angelino testified he observed Reid inside a
private room laying face up on a medical or massage table. Officer Scott Bazan, a crime scene
investigator arrived after Angelino. He observed Reid on the table as Angelino described. She
was clothed, but her pants were pulled down just above the pubic area. There was a sheet
underneath her that had a couple of blood stains on it. Reid had no shoes on and her purse was not
in the room. There were two I.D. cards for Reid in the room. Officers testified the salon had some
furniture and was very clean, but did not look like a working salon because there was no product,
magazines, soap, towels, toilet paper in the bathroom, or garbage cans.
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When the medical examiner arrived and rolled Reid on her side, one side of Reid’s buttocks
had a “cotton bandage” stuck to it while the other side of her buttocks had a “defect” out of which
clear fluid leaked. Many photographs were taken, a plastic cap was collected from the carpet
inside the room, and swabs were taken of the door handle to the private room inside the salon. The
police also found a Blue Silverado truck parked outside the salon.1 Testing later performed at the
Southwestern Institute of Forensic Sciences (SWIFS) revealed appellant’s DNA on the doorknob
of the private room.
When lead detective Brian Tabor arrived at the scene on February 19th, he noted it looked
like a working salon-type business, but it was sparsely furnished and so clean, it didn’t look like
anyone was working there. Alicia told him that Reid had come in the night before feeling ill and
wanted a place to lie down. Alicia allowed her to lie down in the private room. Alicia had a key
to the salon2 and gave consent to search the premises. Tabor’s description of the condition of
Reid’s body was consistent with the other officers’ testimonies. She appeared to have injection
sites and a clear liquid on her buttocks. After speaking with Reid’s daughter, Tabor began looking
for a person known as “Wee Wee.”
Tabor learned Alicia lived at 2810 Birmingham Avenue3 in Dallas, and appellant owned
3220 Meadow Street in Dallas which was down the street from the Birmingham address. Both
properties were located close to the salon at 3810 East Side. Search warrants were executed
simultaneously at the Birmingham and Meadow addresses. At the Birmingham address, police
recovered, among other things, four 5-gallon buckets containing a clear unknown substance, a
green bag containing medical supplies, several syringes, empty super glue packages, empty needle
1
In her brief, appellant stated the truck belonged to Reid.
2
Alicia told Tabor she had been given the key from appellant.
3
There was evidence appellant’s mother Willie Ross co-owned the property. Other evidence at trial indicated
Willie Ross also had another address in Dallas, Texas.
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boxes, an empty box of Dexametasona, Ace bandages, one Botox vial, 20 Lipoplus vials, a box of
iodine swabs, liquid-filled syringes with needle caps on the end, and a vial of Kenalog. Some of
the syringes found at the Birmingham address were similar to the cap found at the salon. At the
Meadow address, the police recovered six vials of lidocaine HCL jelly, one vial of an unknown
clear substance, one methenolone vial, and one bacteriostatic vial.
Detective Tabor requested Chad Medaris, a special agent with the U.S. Food and Drug
Administration Office of Criminal Investigations, to test samples from the 5-gallon buckets found
in the search along with tissue samples taken from Reid during the autopsy. Two FDA chemists
using different testing techniques of analysis confirmed the substance in the white buckets and the
samples of tissue and fluid from Reid were consistent with the presence of silicone. They did not
determine the grade of silicone. Nor could they determine whether the silicone found in Reid came
from the silicone in the buckets.
There was evidence, however, that appellant had purchased large amounts of silicone in
the past in similar buckets. Cary Mellema, vice president and general manager of an industrial
manufacturer of liquid silicone-based products, testified that his company sold product in the same
size and style bucket as those recovered from the Birmingham location. He provided invoices
showing appellant purchased hundreds of pounds of silicone products from his company in 5-
gallon buckets and 1-gallon pails from May 2010 through February 2012.4 He indicated silicone
oil dimethylpolysiloxane lasts forever.
In addition to Robinson’s testimony, appellant’s cell phone records supported the
conclusion that she was at the salon on the night of February 18 and documented communications
between Reid’s phone and appellant’s phone, as well as Alicia’s phone and appellant’s phone.
Various documents filed with the State indicated the phone number ending in 7982 was appellant’s
4
The invoices were to “Rochelle Ross” and listed appellant’s phone number on the order entry worksheets.
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“master phone.” Police also confirmed Alicia’s number ending in 6863, Reid’s number ending in
8955 and Robinson’s number ending in 2296.
Sy Ray from ZetX performed a geolocation analysis from appellant’s T-Mobile phone
records from February 18 through February 20, 2015. On the morning of February 18, there were
calls between Alicia and appellant while appellant’s phone was in an area around Fair Park that
included the 3220 Meadow location. That afternoon, Reid’s phone called appellant’ number while
appellant’s phone was in Duncanville. Shortly thereafter, appellant’s phone called Reid back.
Around 5 p.m., appellant’s phone began travelling back to the Fair Park area. At around 5:55 p.m.,
Reid called appellant and a minute later appellant’s phone sent Reid a text message while the phone
was very close to the salon. Appellant’s phone stayed in the area for the next two hours and sent
Reid two text messages around 8:15 p.m. At 8:23 p.m., appellant called Alicia while the phone
was moving south around the Birmingham address area. Over the next two hours, appellant’s
phone moved between the Birmingham address and the Meadow address, back near the salon for
about forty-five minutes, then returned to the Birmingham address for about an hour before moving
to the Meadow address and proceeding further east. Both Alicia and Robinson called appellant
early on the morning of February 19 while appellant’s phone was in Mesquite.
Dr. Stephen Lenfest performed the autopsy on Reid on February 20, 2015. He testified
that she had some very early stages of decomposition. There were cotton balls glued to the left
buttock and a 1/16th of an inch puncture wound on the right buttock that had a clear, slightly
viscous, material seeping from it. There was a similar puncture wound and liquid under the cotton
balls on the left side. The FDA lab later confirmed the presence of silicone in the tissue samples
sent to it. Lenfest opined Reid’s cause of death was silicone pulmonary embolism from the silicone
that was injected into her buttocks; the silicone entered into blood vessels and travelled first to
Reid’s heart and then to her lungs where it became trapped and caused tissue damage and
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hemorrhaging. Lenfest further indicated the death was a homicide as silicone injections are known
as a high risk procedure that the FDA has outlawed since the 1960s and 1970s except for one
specific type of eye surgery. He concluded that injecting someone with silicone is an act clearly
dangerous to human life and that the silicone would be considered a deadly weapon. Lenfest
thought Reid had died at least four to eight hours before she was found on the morning of February
19. He also indicated that based on the state of decomposition of the body, the injections were
probably done not more than eighteen hours, and no less than four hours, before the body was
found.
Dr. Robert Bredt from the Texas Medical Board testified the Board has broad authority to
define what acts constitute the practice of medicine. According to Bredt, a person who is injecting
silicone into someone’s body would be practicing medicine because it meets the definition of the
practice of medicine within the statute and within the Board’s rules, specifically those dealing with
nonsurgical cosmetic procedures. He indicated injections done for enhancement constitute
treatment for deformity because those cosmetic procedures are treating a deformity perceived by
the patient. He noted plastic surgery for breast augmentation is considered the practice of
medicine. He also indicated administrative rules provided nonsurgical cosmetic procedures are
defined as the practice of medicine. Bredt indicated that to practice medicine in Texas, a person
must be licensed by the State and there were no records on file with the Board that either appellant
or Alicia were licensed to practice medicine in Texas. Bredt further testified injecting industrial
grade silicone into a woman’s body or buttocks could be an act clearly in risk to human life. He
also stated the silicone injections could be a deadly weapon because they could be life threatening.
The only witness to testify for the defense at the guilt/innocence stage of trial was Joshua
Dodd. Dodd stated at about 1:00 a.m. on February 19, 2015, he left a bar in the Deep Ellum area
to visit friends who lived next door to 3815 East Side Avenue. As he was driving there, a dark
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colored, good sized truck was tailgating behind him. After Dodd parked his car in front of his
friend’s loft, the truck swerved around him and parked directly in front of 3815 East Side. Dodd
saw who he later identified as Alicia get out of the passenger’s side of the truck. He did not know
whether or not someone else was in the driver’s side. Todd did not see Alicia go into the building.
At trial, Dodd identified the truck found outside the salon on February 19 as the same truck he saw
the previous night.
ANALYSIS
A. Standard of Review
In three issues, appellant challenges the sufficiency of the evidence to support her felony
murder conviction based on practicing medicine without a license, specifically arguing (1) there is
no evidence that appellant received any money from Reid, (2) there is no evidence that performing
silicone injections for purely vanity reasons constitutes the practice of medicine under the
definition in the occupations code, and (3) there was no evidence that appellant injected Reid with
silicone or assisted Alicia in doing so.
We review sufficiency of the evidence challenges under well-established standards.
See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex.
Crim. App. 2010) (plurality op.).5 To evaluate the sufficiency of the evidence, an appellate court
must view the combined and cumulative force of the evidence in the light most favorable to the
verdict to determine whether, based on the evidence and all reasonable inferences therefrom, any
rational trier of fact could have found each element of the offense beyond a reasonable
doubt. Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App. 2015). The jury, as sole judge of
the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any
5
Although appellant argues the evidence is legally and factually insufficient to support her conviction, we address
her sufficiency challenges under the single standard for evaluating sufficiency of the evidence to support a finding
required to be proven beyond a reasonable doubt. See Brooks, 323 S.W.3d at 895.
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or all of the evidence presented by either side. Jones v. State, 333 S.W.3d 615, 620 (Tex. App.—
Dallas 2009, pet. ref’d).
Appellate review does not intrude on the jury’s role to “resolve conflicts in the testimony,
to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.”
Jackson, 443 U.S. at 319. Instead, the appellate court presumes the fact finder resolved any
conflicting inferences in favor of the prosecution and defers to that resolution. Cavazos v. Smith,
565 U.S. 1, 7 (2011) (per curiam). In analyzing legal sufficiency, we therefore “determine whether
the necessary inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict.” See Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007) (quoting Hooper v. State, 214 S.W.3d 9, 16–17 (Tex. Crim. App.
2007)). Direct and circumstantial evidence are equally probative in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish guilt. See Hooper, 214
S.W.3d at 13. The standard of review is the same for both direct and circumstantial cases. See
Kuciemba v. State, 310 S.W.3d 460, 462 (Tex. Crim. App. 2010). Each fact need not point directly
and independently to the defendant’s guilt so long as the cumulative force of all the evidence,
when coupled with reasonable inferences to be drawn from that evidence, is sufficient to support
the conviction. Hooper, 214 S.W.3d at 13. Legally sufficient evidence need not exclude every
conceivable alternative to the defendant's guilt, Ramsey, 473 S.W.3d at 811.
B. Practicing Medicine Without a License
Appellant was charged with causing Reid’s death. The indictment alleged that on or about
February 18, 2015, appellant intentionally, knowingly, and recklessly committed “the felony
offense of Practicing Medicine without a License, and while in the course of and in furtherance of
the commission of said felony, [appellant] committed an act clearly dangerous to human life, to
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wit: by injecting Wakesha Reed[sic] with silicone, a deadly weapon, and did thereby cause the
death of . . . Wakesha Reid.”
Pursuant to the Texas Occupations Code, a person commits a third-degree felony if she
practices medicine without a license and causes another physical or psychological harm. See TEX.
OCC. CODE ANN. § 165.153 (West 2012). Practicing medicine is defined in the occupations code
as the diagnosis, treatment, or offer to treat a mental or physical disease or disorder or a physical
deformity or injury by any system or method, or the attempt to effect cures of those conditions, by
a person who either (1) publicly professes to be a physician or surgeon or (2) directly or indirectly
charges money or other compensation for those services. See TEX. OCC. CODE ANN.
151.002(a)(13) (West Supp. 2017).
Under the law of parties, a person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another for which he is criminally
responsible, or both. TEX. PENAL CODE ANN. § 7.01(a) (West 2011). Under section 7.02(a), a
person is criminally responsible as a party if, acting with intent to promote or assist the commission
of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit
the offense. Id. § 7.02(a)(2). In determining whether the accused participated as a party, the court
may look to events occurring before, during, and after the commission of the offense, and may rely
on actions of the defendant which show an understanding and common design to commit the
offense. Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994); Burdine v. State, 719
S.W.2d 309, 315 (Tex. Crim. App. 1986).6
In her first issue, appellant argues the evidence is insufficient to support her conviction
because there was no evidence that either appellant or Alicia charged Reid money for injections
6
Although the indictment against appellant did not plead law of parties, the jury charge contained instructions on
the law of parties. See Marable v. State, 85 S.W.3d 287, 287 (Tex. Crim. App. 2002) (en banc) (law of parties need
not be pled in the indictment).
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she received on the night she died. We disagree. Although there is no direct evidence as to what
Reid paid appellant or Alicia for the injections that ultimately caused her death, there was
considerable evidence that appellant charged money for performing injections. Johnson testified
she paid $500 for injections from appellant and Martinez testified that she paid $520 to appellant
for injections. Both women went to locations where other people were also getting injections from
appellant. Robinson also testified that when appellant offered to help pay rent if Robinson found
a salon to lease, appellant was working doing “butt shots.” Robinson testified that on the night of
February 18, there were people in the salon waiting area that were not her clients. Finally, Reid’s
daughter, Keaira, indicated that her mother had received injections about three times before
February 18. Keaira once went with her mom to the Deep Ellum area and waited in the truck while
Reid got injections. After speaking with Keaira, Tabor tried to locate “Wee Wee,” which was a
new name to him at that point. Several witnesses testified they knew appellant as Wee Wee.
Viewed in the light most favorable to the verdict, a rational jury could have made the reasonable
inference that Reid, like others who received injections from appellant and Alicia, paid for them.
We therefore conclude the evidence is sufficient to support a finding that appellant, acting
individually or as party, charged Reid for the injections she received on the night she died. We
resolve appellant’s first issue against her.
In her second issue, appellant contends the evidence is insufficient to establish she was
practicing medicine because “injecting a substance into another person purely for vanity reasons”
does not fall within the occupations code’s definition of “practicing medicine.” Dr. Robert Bredt
from the Texas Medical Board testified that a person injecting silicone into another person
constitutes the practice of medicine because it meets the definition in the statute and the Board’s
rules addressing nonsurgical cosmetic procedures. He noted injections performed for
enhancements constitute a treatment for deformity because of a deficiency perceived by the
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patient. Although none of the witnesses who received the injections indicated they viewed their
buttocks as deformed, they clearly wanted their buttocks to be larger than they were, and thus
perceived them as too small. Accordingly, there was sufficient evidence from which a reasonable
jury could have found that injecting silicone into Reid’s buttocks constituted “practicing
medicine.” See Agripino v. State, 217 S.W.3d 707, 714–15 (Tex. App.—El Paso 2007, no pet.)
(evidence was sufficient to establish injections for vanity reasons constituted practicing medicine
based on similar testimony from representative of State Board of Medical Examiners). We
therefore resolve appellant’s second issue against her.
In her third issue, appellant argues the evidence is insufficient to support her conviction
because it fails to show she, individually or as a party, injected Reid with silicone, thereby causing
her death. Although there was no direct evidence as to who performed the injections on Reid’s
buttocks, including the ones she received on the night she died, there was ample circumstantial
evidence from which the jury could conclude that either appellant or Alicia with appellant’s
assistance administered the injections.
Reid was found dead in the room that, according to Robinson, Alicia and appellant used to
perform “butt injections.” After Tabor spoke to Reid’s daughter about her mother’s death, he
began to look for a person called “Wee Wee,” the name several witnesses called appellant. Reid
called appellant’s phone at 3:08 p.m. on February 18th and appellant’s phone contacted Reid’s
phone at 3:21 p.m. the same day. At around 5 p.m. that evening, appellant’s phone began moving
towards the Fair Park area of Dallas. At 5:54 p.m. Reid called appellant and who then sent a text
to Reid while appellant’s phone was very close to 3815 East Side. Appellant’s phone remained
near that location for the following two hours. The jury could have inferred from these records
and the geolocation analysis of appellant’s phone that appellant and Reid were present at the salon
together on February 18. Additionally, on the evening of February 18, Robinson saw appellant
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twice exit the room in which Reid was found dead the next morning. The first time was at about
6:30 when appellant came out of the private room to tell Robinson to turn up the radio and then
again thirty to forty-five minutes later when she came out of the room to tell everyone to leave.
Appellant’s phone was also in the vicinity of the salon for about forty minutes from 8:43 to 9:30
p.m. that evening. The only DNA found on the door handle of the private room was that of
appellant.
Although appellant argues there is no evidence she had her phone in her possession during
the relevant times, evidence from other witnesses who had injections by appellant suggests
appellant’s use of her phone on February 18 was consistent with how she used her phone with
previous clients. Moreover, the phone was in appellant’s possession on the morning of February
19 when Robinson called her to see if it was okay to return to the salon. Appellant’s previous
clients also testified that appellant and Alicia performed injections on them simultaneously.
Viewed in the light most favorable to the verdict, we conclude the evidence was sufficient for a
rational jury to infer appellant was present in the private room in the salon on February 18 when
appellant and/or Alicia injected Reid with silicone ultimately causing her death.
In reaching this conclusion we necessarily reject appellant’s contention that a conviction
based on circumstantial evidence cannot be sustained if the circumstances do not exclude every
other reasonable hypothesis except that of guilt of the defendant. Although inferences based on
mere speculation are insufficient to support a conviction, the State’s evidence need not exclude
every reasonable hypothesis except defendant’s guilt. See Ramsey, 473 S.W.3d at 808 n.3, 809.
It is sufficient that the evidence viewed in the light most favorable to the State’s case, supports the
incriminating inference that appellant, individually or as a party, injected Reid with silicone
thereby causing her death. See id. We therefore resolve appellant’s third issue against her.
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C. State’s Cross-Issue
In its cross-issue, the State requests that we modify the judgment to correctly reflect that
the jury made an affirmative deadly weapon finding. We agree. The record reflects that in
response to a special issue, the jury unanimously found that appellant used or exhibited a deadly
weapon, namely silicone, in the commission of the offense. The trial court’s judgment however,
incorrectly indicates “N/A” under the heading “Findings on Deadly Weapon.”
The court has the power to modify an incorrect judgment to make the record speak the truth
when it has the necessary information before it 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); Asberry v. State, 813 S.W.2d 526, 529–30
(Tex. App.—Dallas 1991 pet. ref’d). Here, this Court has the necessary information to correct the
trial court’s judgment to include a deadly weapon finding. Accordingly, we modify the “Judgment
of Conviction By Jury” to include an affirmative deadly weapon finding by deleting “N/A” and
replacing it with “Yes, not a firearm” under the heading “Findings on Deadly Weapon.”
CONCLUSION
Based on the record before us, we conclude the evidence is sufficient to support appellant’s
conviction. We modify the trial court’s judgment to include an affirmative deadly weapon finding.
As modified, we affirm the trial court’s judgment.
/David Evans/____
DAVID EVANS
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
170346F.U05
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DENISE ROCHELLE ROSS, Appellant On Appeal from the 204th Judicial District
Court, Dallas County, Texas
No. 05-17-00346-CR V. Trial Court Cause No. F-15-75745-Q.
Opinion delivered by Justice Evans,
THE STATE OF TEXAS, Appellee Justices Lang-Miers and Schenck
participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:
Under the heading "Findings on Deadly Weapon" we delete "N/A" and replace it
with "Yes, not a Firearm."
As MODIFIED, the judgment is AFFIRMED.
Judgment entered this 20th day of August, 2018.
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