Jamelle Shaquil Rasberry v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00128-CR
NO. 02-14-00141-CR
JAMELLE SHAQUIL RASBERRY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
TRIAL COURT NOS. 1322031D, 1286741D
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MEMORANDUM OPINION 1
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In two cause numbers, Jamelle Shaquil Rasberry appeals from his
conviction and life sentence for capital murder and from a judgment adjudicating
him guilty of aggravated assault on a family member after the revocation of his
deferred adjudication community supervision for committing the new offense of
capital murder. In seven issues, he challenges the sufficiency of the evidence to
1
See Tex. R. App. P. 47.4.
support his convictions and to corroborate an accomplice-witness’s testimony
(issues one, six, and seven), the trial court’s allowing the State to question its
own witness using what appellant alleges was a leading question (issue two), the
trial court’s refusal to admit the accomplice-witness’s prior written statement to
police into evidence (issue three), the admission of three photographs that
appellant contends are substantially more prejudicial than probative (issue four),
and the trial court’s allowing the State to call a witness for the purpose of
impeaching him with a prior statement to police (issue five). We affirm.
Sufficiency of the Evidence
Because appellant’s first issue is that the trial court erred by denying his
motion for directed verdict, a sufficiency-of-the-evidence challenge, we will
discuss the background facts within our discussion of the issue. See Canales v.
State, 98 S.W.3d 690, 693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003).
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). The State charged appellant with intentionally
committing murder in the course of robbing or attempting to rob Johnny Williams.
The State also charged four other men with the same offense: Jason Villareal,
who acted as a lookout and testified against appellant, cousins Jonathan Martin
2
and his cousin Corwon Martin, 2 and Javier Cordova, Villareal’s cousin. A jury
convicted appellant of capital murder in trial court cause number 1322031D, and
in trial court cause number 1286741D, the trial judge found that appellant had
committed the new offense of capital murder, revoked his deferred adjudication
community supervision, and adjudicated him guilty of aggravated assault of a
family member.
The Crime
The State began by playing a 911 call for the jury. A woman can be heard
telling the dispatcher that a man has been shot at the Woods of Eastchase
apartments. A man can then be heard, who explains to the dispatcher that he
heard a bang, went outside, and saw a man who had been shot lying on the
ground. The caller tells the dispatcher he thinks he might know the man who had
been shot; when asked the man’s condition, the caller says that he thinks the
man is dead. The caller can be heard knocking on a door and asking someone if
the man might be “your dude.” The call ends with a woman screaming
repeatedly.
Terry Cesar
Terry Cesar testified that in December 2012, he lived in the Woods of
Eastchase apartments on Ederville Road in east Fort Worth. At 4:30 a.m. on
December 28, 2012, he was awake watching TV when he heard faint voices
2
All references to “Martin” in this opinion are to Jonathan Martin.
3
outside that sounded like two men talking. He heard a man with whom he was
familiar say, “Man don’t”; a second man responded, “Fuck that.” Cesar thought
the first man sounded as if he knew the second man. Cesar then heard a loud
bang that sounded like a gunshot.
Cesar went outside and saw the man who had said, “Man don’t,” lying face
up on the ground behind the building and another man standing at that man’s
feet. The man who was standing was wearing a hoodie that looked black but
had white designs on the back of it and very dark pants. The man in the hoodie
“kind of looked” at Cesar and then ran away from him; Cesar was not able to see
his face. Likewise, Cesar never saw a gun or the person holding anything.
Cesar was scared, so he had his girlfriend call the police. He then went
back to the man who had been shot and stayed with him. They did not speak
because the man was choking on blood. Cesar recognized the man as someone
he had seen at the apartments before. At some point, Cesar went to the
apartment where the man’s girlfriend lived and told her that a man who could be
her boyfriend had been shot and was lying on the ground outside the apartments.
She came outside, and when she saw the man lying on the ground, she ran over
to him. Cesar heard her say, “[T]hey shot him,” and then she screamed. She
also went through the man’s pockets; she “took something out [of] . . . his left
pocket . . . and balled it in her hand,” and she took the man’s phone. She then
ran into her apartment and locked the door. Cesar waited with the man until the
police arrived.
4
Cesar thought the man in the hoodie had been trying to rob the other man
because he did not run away immediately when Cesar came outside. Cesar
admitted, however, that he did not see the man in the hoodie going through the
other man’s pockets. Cesar also admitted he had just assumed the man in the
hoodie had been trying to rob the other man because of “the senseless crime
that [had been] happening” in the area.
Bradley Cantu
Fort Worth Police Officer Bradley Cantu testified that he was dispatched to
a shooting at 4:26 a.m. on December 28, 2012. He arrived about five minutes
later with another officer. Cesar’s girlfriend flagged them down when they drove
into the complex. Officer Cantu found a black male, whom he identified as
Williams, lying face up on the sidewalk and a woman who identified herself as
Alice Davis standing over him screaming and crying. Officer Cantu also saw
Cesar standing there. Officer Cantu checked for Williams’s pulse but could not
feel one. The paramedics pronounced Williams dead at the scene.
Officer Cantu went with Davis to her apartment so that he could question
her. Davis told Officer Cantu that she had spoken to Williams around midnight,
and he was going to bring her some food. Other officers found Williams’s car in
the parking lot of the apartment complex. After Officer Cantu learned that Davis
had taken a cell phone out of Williams’s pocket, he took her to his patrol car to
question her further. He confiscated a cell phone Davis had with her in the patrol
car.
5
Tyrone Glapa
Officer Tyrone Glapa, a crime scene search officer, was also called to the
scene. The State introduced his photographic documentation of the scene into
evidence. Officer Glapa also searched Davis’s apartment and found a
disassembled cell phone under a pillow in the bedroom.
Alice Davis
Davis testified that appellant is her oldest child’s father. At the time of trial,
she had known appellant for seven years. She said that everybody called him
L.A. By the time of the shooting, Davis and appellant were no longer in a
relationship, and she was dating Williams. Williams was a successful drug
dealer. Davis said that appellant did not like her relationship with Williams
because “if he can’t have me, can’t nobody have me.” She also said that
appellant just did not like Williams.
In March 2012, Child Protective Services investigated whether Davis’s
home was suitable for her and appellant’s child and placed the child in foster
care; one of the main reasons for the removal was that Davis was helping
Williams sell drugs. Appellant was angry about the removal and said it was
Williams’s fault. Appellant asked Davis at least five times to help him rob
Williams. She thought appellant talked about robbing Williams when he was out
of money, and he said things to make her think that he should have some of
Williams’s money. She refused.
6
The couple’s child was still in foster care at the time of the shooting. The
day before, Davis had attended a CPS-required class and visited their child. She
talked to appellant that day and told him he needed to complete his classes; he
responded that “he shouldn’t have to do no classes because it’s [Williams’s] fault
that [the child] got took.” He was angry. That same day, appellant told her again
he wanted to rob Williams, “to set him up.” She told him no.
Davis typically communicated with appellant on his mother’s cell phone.
On December 28, 2012, Davis was expecting Williams to come home
around 3:00 or 4:00 a.m.; he had been staying with her at the apartment. Davis
said that after she found out that Williams had been shot, she took his cell phone
to call his uncle but it was locked; she took it with her when she ran into her
apartment to use her cell phone. She said initially that Williams’s phone came
apart in the apartment because it kept ringing, so she threw it; Davis admitted
later, however, that she had taken the phone apart. Davis said she had checked
Williams’s pockets for drugs at his aunt’s suggestion, but she did not find any.
She also said she had found money but left it in his pocket.
When a detective interviewed Davis after the shooting, she did not tell him
everything at first because although she suspected appellant had shot Williams,
she did not want to accuse her child’s father unless she was sure. Davis testified
that she had told the detective that appellant did not know where she lived and
7
thought she lived in Arlington. 3 She agreed that the detective had said to her
during the interview, “[T]his ain’t a robbery.” But she thought the motive was
robbery nevertheless. Appellant did not have a job, nor did he make the kind of
money Williams did. Williams supported her and her child but appellant did not.
Davis also confirmed that appellant was the only one of the other men charged
who knew Williams.
Walter Battles
Walter Battles was also a resident of the Woods of Eastchase apartments.
From the evening of December 27, 2012 through early morning December 28, he
noticed a dark blue Chevy Impala in the parking lot “just moving around the
apartments, going in and out, changing spots.” It made him nervous. At some
point, he decided to check out the car; it was parked next to a dumpster, and
under the guise of taking out some garbage, he checked on the car’s occupants.
Battles said there were two Hispanic males in the car, and he talked to them.
They were not doing anything other than sitting in the car talking. By the time
Battles got back to his apartment, they had moved, but the car was still in the
complex. Battles identified a photograph of the Chevy Impala. He also testified
that he might have seen just a glimpse of a silver car.
3
Davis had a protective order against appellant at the time, but she
communicated with him regularly.
8
Jason Villareal
Villareal testified that he had also been charged with the capital murder of
Williams. He admitted that he hoped for leniency in exchange for his “fair and
straight” testimony but that he had not made a deal with the State. Villareal
testified that he did not know Williams, but he did know L.A. and identified him as
appellant. Villareal is a tattoo artist and had tattooed appellant several times.
According to Villareal, on the night of December 27, 2012, appellant came
over to Villareal’s apartment with two friends. One had dreadlocks and was
wearing a green jacket; Villareal learned later that he was Martin. Villareal did
not remember what the other man looked like. At first, the men talked about
tattoos, but then appellant and his friends started talking about committing
robbery and getting a gun. They had a couple of handguns with them, but the
guns were not working. They told Villareal they needed “something that works,”
so Villareal gave them a .410 shotgun and ammunition. Initially, Villareal wanted
$50 for the gun, but appellant did not have the money. Appellant told Villareal he
would pay him more than $50 from the proceeds of the robbery.
After Villareal gave the three men the gun, Villareal’s cousin Cordova
came over to the apartment and heard appellant and his friends talking about the
robbery. Villareal suggested to Cordova that the two of them follow appellant
and his friends to wherever they were going. Villareal and Cordova drove in
Cordova’s blue 2011 Chevy Impala, and appellant, Martin, and possibly the other
man drove in a silver car. Villareal identified Cordova’s car from a photograph; it
9
was the same photograph from which Battles had identified the car he had seen
in the apartment complex.
Villareal and Cordova went to the Wells Fargo by the Woods of Eastchase
apartments. Martin and appellant pulled up in the silver car and told Villareal and
Cordova to wait and look for a silver Pontiac with blue headlights. According to
Villareal, he and Cordova were at the Wells Fargo for about an hour until a man
came over to throw away trash. That man talked to them, which made them
nervous; they moved into a nearby Burger King parking lot where they stayed for
two or three hours. While they were sitting in the Burger King parking lot, they
saw the Pontiac. It was around 3:30 or 3:40 a.m. Villareal called appellant at a
different phone number than appellant’s usual number.
After a little while, Villareal and Cordova saw headlights from a car that
appeared to be leaving the apartment complex; they followed because they
thought maybe appellant was leaving the scene without paying them. Eventually,
they caught up to appellant and Martin at a Valero station. 4 Appellant and
Cordova both got out of the cars and “exchanged some words.” Appellant then
opened Cordova’s car door, threw the shotgun in, and told Villareal and Cordova
that he would meet them later. Villareal could smell something that he described
4
The evidence showed that there was a Valero station east of the
intersection of Eastchase and Meadowbrook, just northeast of the Woods of
Eastchase apartments.
10
being like a gun’s having been fired, but he did not see any shooting. They each
went their separate ways.
Villareal later called appellant and told him to come pick up the gun even if
he could not pay for it. Villareal and Cordova went back to Villareal’s apartment
that night and left the Impala unlocked in the parking lot. When they woke up
around noon or 1:00 p.m. on December 28, 2012, the shotgun was gone.
Villareal met with Detective Thomas O’Brien of the Fort Worth Police
Department and told him mostly everything that he testified to at the trial except
for the following: he did not tell Detective O’Brien that he had sold appellant the
shotgun; he did not tell the detective that appellant had brought a man other than
Martin to Villareal’s apartment; and he told the detective he did not know
anything about a robbery until he got to the Wells Fargo but that appellant was
going to pay him to be a lookout. 5 Villareal gave Detective O’Brien consent to
search his phone. Villareal saw appellant one time in jail; appellant gave him a
hug and told him not to say anything.
The Investigation
Thomas O’Brien
Fort Worth Police Detective Thomas O’Brien spoke with Davis both at the
scene and later at the police station. He admitted that when he was interviewing
5
At trial, Villareal testified that he and Cordova went to the apartment
complex because he was bored and thought he would get his money for the
shotgun out of whatever appellant and his friends got.
11
Davis, he told her that he did not think the motive of the shooting was robbery
because she was very focused on the robbery aspect, and he wanted her to tell
him if Williams had any enemies. She was reticent about giving him information.
After appellant came to his attention as a possible suspect, Detective O’Brien
confirmed with Williams’s family that Davis had spoken with them by phone just
after the shooting. Williams’s phone was locked, and Detective O’Brien could not
extract any data from it; when he had a forensic data dump performed on it, 6 the
attempt caused the phone to be wiped clean and reset to factory settings.
Detective O’Brien received a tip that Danny Dorsey, also known as Ray
Ray, might know something about the shooting. When Detective O’Brien
interviewed Dorsey, he asked Dorsey who L.A. is, and Dorsey answered that
L.A. is appellant. Dorsey also said appellant has L.A. tattooed on his body,
which Detective O’Brien verified; the trial court also admitted a photograph of
appellant that shows his tattoo. According to Detective O’Brien, Dorsey told him
that on the evening of December 27, 2012, appellant called him maybe around
7:00 or 8:00 p.m. and asked for some bullets for a .38 or 9mm. 7 Dorsey
suggested that appellant’s brother Phillip could get them the next day, but
appellant said, “[N]o, I got to do something tonight.” Dorsey told Detective
6
A forensic data dump consists of “isolat[ing] the phone from the network to
prevent any changes to the network for the phone updating, calls, or . . .
receiving . . . a kill signal. . . . and then . . . mak[ing] a data extraction from it.”
7
When the State questioned Dorsey in the trial, he denied knowing
appellant or anything about the offense.
12
O’Brien that appellant asked him for a ride, but Dorsey did not have a car.
Dorsey further told Detective O’Brien that he heard about the shooting around
10:00 a.m. on December 28, 2012.
Also during the interview, Dorsey said that appellant had previously pulled
a gun on “his baby mama’s boyfriend or baby mama’s man” and that appellant
had told Dorsey that he wanted to rob Williams. Dorsey said several times
during the interview that appellant had told him that Williams had “a lot of dope
and money on him.” Appellant also told Dorsey, “I’m going to get him one day.”
Dorsey told Detective O’Brien that appellant knew where Williams lived and what
time he usually came home. When Detective O’Brien asked Dorsey if he thought
appellant had shot Williams, Dorsey said he did. But Dorsey also said during the
interview that he did not want to be a snitch.
Dorsey confirmed Martin’s cell phone number for Detective O’Brien and
also told him that the only person he thought appellant could have gotten a ride
from was a person who matched Martin’s description. The State played the
recording of a subsequent interview Detective O’Brien had with Dorsey for the
jury. Dorsey never seemed high or incoherent when Detective O’Brien
interviewed him. Detective O’Brien was able to corroborate most of what Dorsey
told him.
13
In addition to interviewing Dorsey, Detective O’Brien got warrants for the
records for Martin’s cell phone, appellant’s mother’s cell phone, 8 and Dorsey’s
cell phone. Detective O’Brien found twenty calls between Dorsey’s phone and
appellant’s phone over a three-month period. He also found three calls between
Dorsey’s number and Martin’s on the night of December 27, 2012: one at
11:05 p.m., another at 11:16 p.m., and a final one at 11:17 p.m. Those three
calls were the only ones between Dorsey’s phone and Martin’s within a three-
month period before the shooting. Likewise, the only calls between Villareal’s
and Martin’s phones within a three-month period before the shooting were from
December 27 to December 28, 2012; from a six-hour period beginning at
11:00 p.m. on the 27th and ending at 5:00 a.m. on the 28th, there are nineteen
calls between Martin’s phone and Villareal’s. But there are over fifty text
messages and twenty-five phone calls between Villareal’s and appellant’s phone
over the same three-month period, which indicated to Detective O’Brien that
Villareal and appellant were friends but Villareal and Martin were not. Detective
O’Brien found no evidence that Martin, Martin’s cousin, Villareal, or Cordova
knew Williams; the only common link between those four and Williams was
appellant.
8
The evidence showed that at least five people had access to and were
allowed to use appellant’s mother’s phone: appellant, his mother, his brother,
and his two sisters. But because there is evidence that appellant regularly used
the phone, and that Villareal, Davis, and others regularly contacted him on it, we
will refer to his mother’s phone as appellant’s phone for ease of discussion.
14
The phone records show that from December 27 through December 28,
the location of appellant’s phone never changed from the southwest Fort Worth
area near his mother’s home. The records also show that from 9:23 p.m. to
9:26 p.m. on the 27th, someone using Martin’s phone called appellant’s phone
ten times in a row. Beginning at 10:44 p.m. through 11:00 p.m. the same night,
there were four other calls placed from Martin’s phone to appellant’s phone. The
records reflect that one of the calls from Martin’s phone to appellant’s phone was
made immediately before a call to Villareal’s number. 9 Similarly, another call was
placed from Martin’s phone to appellant’s a few minutes before a call was placed
from Martin’s phone to Dorsey’s number. Detective O’Brien opined that appellant
was using Martin’s phone to call his phone so that he could remotely access the
contact list to look up Villareal’s and Dorsey’s numbers. Detective O’Brien did
not find either Dorsey’s or Villareal’s number in the contacts list on Martin’s
phone.
Detective O’Brien interviewed Martin twice. At first, Martin denied knowing
anything about the shooting. Martin’s story about his involvement in the shooting
“evolved over time.” Detective O’Brien thought that Martin’s initial denial was
untruthful, but he also thought that Martin became more truthful the more they
talked. Although Martin never identified anyone other than appellant as the
9
There are two seconds-long short calls in between. The digits of the
numbers are the same as Villareal’s but for the area code prefix; the area code
prefix for Villareal’s number is 682, and the intervening calls used the prefix 817.
15
shooter, he also denied knowing whether appellant shot Williams. Detective
O’Brien also took pictures of Martin’s car.
Detective O’Brien obtained red light camera footage from the intersection
of Meadowbrook and Eastchase. On a video admitted into evidence, two cars
can be seen following each other southbound on Eastchase past Meadowbrook
at around 12:29 a.m. on December 28. One appears to be a silver Impala and
the other a blue Impala. Both of the cars turn left just past the intersection.
Around 4:20 a.m., a silver, light bluish Pontiac can be seen traveling in the same
direction and also turning left just past the intersection. The left turn is to
Ederville Road, where the apartments are located. Detective O’Brien testified
that there is a Valero gas station east of the intersection at Eastchase and
Meadowbrook. The location of one of the calls between Martin’s and Villareal’s
phones is consistent with having been made from the Valero.
As a result of Detective O’Brien’s investigation, Fort Worth police arrested
appellant, Martin, Martin’s cousin, Villareal, and Cordova for capital murder.
Detective O’Brien was present when the police arrested appellant. Officers
found three cell phones and a jacket with appellant. Although the jacket is not a
hoodie, it is dark and has what appear to be patches of different company logos
on it; many of them have light or white borders or writing on them. Detective
16
O’Brien testified that a person could have worn a hoodie under the jacket,
especially in December. 10
Duc Nguyen
Duc Nguyen, a Fort Worth Police Department detective assigned to the
digital forensic lab, testified that he performed a forensic data dump of Martin’s
phone. He was able to extract many photos from the phone, along with the date
on and location from which those photos were taken. One of those photos was
taken inside a car and shows the car console and a hand holding a handgun. No
face can be seen in the photograph. Martin’s phone recorded the time the
photograph was taken as 10:53 p.m. on December 27, 2012. The time shown on
the car’s console in the photograph is 10:56 p.m. The location recorded on the
photograph was on Woodhaven Drive, which is on the east side of Fort Worth.
Detective O’Brien identified the photograph as having been taken from inside
Martin’s Impala.
Text Messages and Call Records
The phone records show that a text message was sent on
December 26, 2012 from appellant’s phone to Martin’s saying, “Dam blood we
gotta jack[] o boy on the set.” 11 Two messages from appellant’s phone to
10
Text messages from appellant’s phone on December 28, 2012 indicate
that the temperature was as low as thirty-two degrees around 8:30 p.m. on
December 28, 2012.
11
Detective O’Brien explained that “on the set” means something “is
definitely going to happen, it’s for real.”
17
Davis’s, sent on December 25 and 26, refer to “o boy”: “If u cme over here aint o
boy going to be asking wer u at??” and “Ok..wt u wit o boy.” Early the next
morning, December 27, there is a text from Davis’s number to appellant’s phone
at 2:38 a.m. saying, “hope ya go see” their child. At 9:35 a.m., there is a text
from appellant’s phone to his sister’s phone asking if she was going to see his
child that day; there is also a message from appellant’s phone to Martin’s number
about calling CPS. Davis called appellant’s phone at 11:26 a.m.; the call lasted
nine minutes. At 3:22 p.m., there is a message from Martin’s phone to
appellant’s phone; it references lifting weights. The response from appellant’s
phone at 3:23 p.m. states, “im liftin right now too at the gym we fina leav i been
here 3 hours.” [Emphasis added.]
The texts continue with one from appellant’s phone to Martin’s stating,
“i.need some weed,” and suggesting that they go to someone’s house. The texts
from Martin’s number indicate that the writer needed gas. In between is a series
of messages between Davis’s number and appellant’s phone indicating that
Davis was at a CPS class and was wondering why appellant was not there. At
3:36 p.m., there is a message from appellant’s phone to Martin’s saying, “Cme to
my hse.” At 3:46 p.m., Davis called appellant’s phone, and the conversation
lasted five minutes. At 3:55 p.m., there is a message to Martin’s phone from
appellant’s phone stating, “Ayy we need to robb bro tonight on the set I gotcha on
the gas.”
18
There are no outgoing text messages on appellant’s phone from 3:58 p.m.
until 8:41 p.m., but there are a series of short outgoing phone calls made
between 4:02 p.m. and 4:58 p.m. There is also a forty-five minute outgoing call
beginning at 4:58 p.m. After that call, there are only two seconds-long outgoing
calls: a twenty-eight second call at 5:12 p.m. and a thirty-five second call at
8:37 p.m. During this time, appellant’s phone received but did not answer the ten
short calls from Martin’s phone about which Detective O’Brien testified.
Additionally, between 8:41 and 10:45 p.m., there are numerous text
messages being sent from and received on appellant’s phone. The first
message at 8:41 p.m. says, “Hey this phillip.” From that time until around
10:45 p.m., there are a series of incoming and outgoing messages between
appellant’s phone and three other numbers; in each conversational thread, the
writer of the text from appellant’s phone identifies himself as Phillip. There are
also several messages between unidentified persons during a seven-minute
period from 12:01 to 12:08 a.m. on December 28, 2012 and a one-minute phone
call at 12:36 a.m. from appellant’s mother’s ex-boyfriend; after that, there is no
activity on the phone until 5:20 a.m. At that time, a series of short outgoing calls
began.
Between 5:22 a.m. and 7:08 a.m., there are ten outgoing, less than one-
minute calls from appellant’s phone to his mother’s ex-boyfriend’s number. At
11:22 a.m. on December 28, 2012, the records show a text message from
Dorsey’s phone to appellant’s phone that says, “Call me la or phillip asap.”
19
Mark Sedwick
FBI Special Agent Mark Sedwick explained how cell phone triangulation
works. He performed an examination of cell phone records for Martin’s phone
and appellant’s phone and prepared exhibits with a graphical map showing the
locations of calls made to and from each phone between roughly 4:00 p.m. on
December 27, 2012 and 6:00 a.m. on December 28, 2012.
Special Agent Sedwick confirmed that on December 27, 2012, there were
about ten short calls from Martin’s phone to appellant’s phone within a three-
minute period starting at 9:23 p.m.; all of them lasted under ten seconds. There
was no cell phone tower location data for appellant’s phone for these calls, which
indicated to Special Agent Sedwick that that phone was probably turned off at the
time. But Martin’s phone utilized a cell tower close to appellant’s mother’s
residence on the southwest side of Fort Worth.
The evidence also showed that a two and a half minute call was placed
from Martin’s phone to Villareal’s at 10:50 p.m. on December 27, 2012. The
evidence also showed a call from Martin’s phone to Dorsey’s phone at
11:05 p.m. on December 27, 2012; this call lasted a little over two minutes. All of
these calls were made from locations on the east side of Fort Worth, near the
Woods of Eastchase apartments.
The phone records further show that at 11:17 and 11:18 p.m., Martin’s
phone was used to call Dorsey’s and Villareal’s; both calls lasted less than one
minute. The cell tower utilized for those calls showed that they were made from
20
far southwest Fort Worth, closer to appellant’s mother’s home and Villareal’s
residence than the Woods of Eastchase apartments. Finally, a series of calls
were made from Martin’s phone to Villareal’s early in the morning on
December 28, 2012. The first call was made at 12:27 a.m. and lasted about four
and a half minutes, the second was made at 12:42 and lasted twenty-three
seconds, the third was placed at 2:16 a.m. and lasted roughly three and half
minutes, and the last one was made at 3:01 a.m. and lasted a little over a minute.
According to Special Agent Sedwick, these calls were made from the area of the
shooting. One of the exhibits he prepared confirms the coverage area of the two
towers used by Martin’s phone between 12:30 a.m. and 4:30 a.m. on
December 28, 2012.
Special Agent Sedwick testified that he performed the same analysis on
appellant's phone, which showed that it never left the general area of his
mother’s residence in southwest Fort Worth.
Marc Krouse
Medical examiner Marc Krouse testified that Williams died from a shotgun
wound and that he choked on his blood: “Basically, he bled to death internally,
aspirated blood into other parts of his lungs so that he couldn’t effectively
oxygenate blood and died as a result of that trauma.” Krause found shotgun
pellets in Williams that appeared to be .410 gauge. Krause also testified that
medical examiners found $639 in cash in Williams’s pocket: one one-hundred-
21
dollar bill, seventeen twenty-dollar bills, nine ten-dollar bills, fourteen five-dollar
bills, and thirty-nine one-dollar bills.
Lillian Lau
Lillian Lau was a crime lab criminalist assigned to the firearm and tool
mark unit. She examined the pellets removed from Williams and determined that
they were number nine birdshot; she also examined the shotgun cup that the
medical examiners had found in Williams’s chest and determined that it was
consistent with a .410 shotgun. The shot that was in the casing had not spread
out very much when it hit Williams, indicating that he had been shot at close
range.
Appellant’s Alibi Witnesses
Appellant’s mother testified that she, appellant, Phillip, and appellant’s
youngest sister went to a Fort Worth rec center together on December 27, 2012.
They stayed for around five hours and did not get home until around 6:00 p.m.
After they ate dinner, she went to her room around 7:00 p.m. to watch television.
She went to bed around 10:00 p.m. Appellant was at the house at the time; she
did not recall him leaving that night.
Appellant’s mother testified that she woke up around 4:50 a.m. when
appellant came into her room to use the restroom and talked to her. She knew
what time it was because she has “a habit of looking at the clock.” She woke up
again around 9:30 a.m.
22
According to appellant’s mother, “[a]ll the kids use [her] phone.” She said
appellant had her cell phone from December 27 to December 28, 2012 because
he asked her for it around 9:00 p.m. on December 27 after everyone got back
from the rec center. He gave it back to her the next morning.
She knew appellant associated with Martin, who used to date her oldest
daughter, but she said she did not know the other defendants or Dorsey. She did
not think her other children associated with them either.
The older of appellant’s two sisters testified that she was at home sick on
December 27 and that her whole family was at the house that night and the next
day. Appellant generally slept on her bedroom floor when he stayed at his
mother’s house; she woke up around 4:00 a.m. on December 28 and noticed that
he was asleep there. Between 4:30 and 5:00 a.m., she posted on Facebook that
she had been sick and her brother had been taking care of her like he was a
doctor. When she woke up again around 7:00 a.m., appellant was still asleep.
At the time of the shooting, appellant’s sister had her own cell phone. She
admitted that there was no reason for phone records to show calls from her cell
phone number to Martin’s or Dorsey’s phone. Nevertheless, the State introduced
evidence of phone records showing a two-minute-and-ten-second call from
Martin’s phone to hers at 4:53 a.m. on December 28, 2012. She denied
speaking to Martin or appellant that night and had no explanation for the call.
Phillip corroborated the testimony that the family went to the gym together
and got back to the house around 6:00 or 7:00 p.m. on December 27, 2012.
23
Phillip testified that he and appellant played a PS3 game from 7:00 p.m. until
around 2 a.m. on December 28 and that he went to sleep on the couch in the
front room around 2:30 a.m. He never saw appellant leave. He woke up around
9:00 a.m.
Phillip denied knowing anyone named Ray Ray or Dorsey. He had no
explanation for why Dorsey would send a text asking for him. Phillip denied
using appellant’s phone and said that only appellant or their mother did. He also
denied sending the “Hey this phillip” message.
Analysis
According to appellant, “[a]lthough the jury is free to make inferences from
the evidence presented, much of the evidence here was based on pure
speculation. The jury could only guess who sent the texts.” Appellant’s
argument attempts to isolate each piece of evidence out of context: he contends
that (1) Cesar’s testimony about a dark hoodie with white designs on it is
unreliable because Cesar did not recognize any of the familiar logos and did not
identify at trial the jacket police recovered from appellant, (2) Villareal’s failure to
initially tell Detective O’Brien about there having been a third man with appellant
on the night of the shooting “[c]learly . . . should show” that Villareal changed his
story to substitute appellant for the third man and to downplay Villareal’s own
role, (3) Detective O’Brien’s information from Dorsey was hearsay and unreliable,
(4) there are only two relevant phone records––the texts to Martin’s phone about
robbing “o boy” and “bro”––which appellant contends were taken out of context
24
(arguing that they were said in jest in reference to some girls appellant and
Martin had met and that the “o boy” and “bro” referred instead to Martin’s
father), 12 (5) the phone records are inherently speculative because there is no
way to identify who was using the phone at the time, and (6) the State’s attempt
to impeach appellant’s alibi witnesses failed.
Appellant misapplies the relevant standard of review. When performing an
evidentiary sufficiency review, we determine whether the necessary inferences
are reasonable based upon the cumulative and combined force of the evidence
when viewed in the light most favorable to the verdict. Sorrells v. State, 343
S.W.3d 152, 155 (Tex. Crim. App. 2011); Hooper v. State, 214 S.W.3d 9, 15–17
(Tex. Crim. App. 2007). We must presume that the factfinder resolved any
conflicting inferences in favor of the verdict and defer to that resolution. Jackson,
443 U.S. at 326, 99 S. Ct. at 2793; Dobbs, 434 S.W.3d at 170. Circumstantial
evidence is as probative as direct evidence in establishing the guilt of an actor.
Dobbs, 434 S.W.3d at 170; Hooper, 214 S.W.3d at 13. Moreover, we must
consider all the evidence admitted at trial––even improperly admitted evidence,
12
Although this is a possible way of interpreting the text messages, it is
unlikely considering appellant’s messages to Davis referencing “o boy” and the
fact that several text messages from appellant’s phone in the month before the
murder mention getting or looking for a lick, often in proximity to other messages
about his wanting drugs. See Lewis v. State, 448 S.W.3d 138, 145 (Tex. App.––
Houston [14th Dist.] 2014, pet. ref’d) (explaining that hitting a lick is a common
euphemism for robbery or burglary), petition for cert. filed (U.S., May 8, 2015)
(No. 14-9687). In any event, the jury was not required to interpret the phone
evidence in the way appellant contends.
25
including hearsay––when performing a sufficiency review. Winfrey v. State, 393
S.W.3d 763, 767 (Tex. Crim. App. 2013); Poindexter v. State, 153 S.W.3d 402,
406–09 (Tex. Crim. App. 2005).
Here, there is ample circumstantial evidence in the record as a whole from
which the jury could have reasonably concluded that appellant shot Williams
while robbing or attempting to rob him: (1) appellant was the only link between
the other four defendants and Williams and was found with a jacket similar to the
description given by Cesar, who not only heard the shooting but saw a man
standing over Williams immediately afterward; (2) it can be reasonably concluded
from the timing and context of the texts with Martin (and the other texts later in
the evening on appellant’s phone) and the call records that Martin picked up
appellant and that the two were together using Martin’s phone on the evening of
December 27, 2012; (3) the location of phone messages confirms the location of
Martin’s phone near the apartments that night; (4) a car matching the description
of Martin’s was in the location of the apartments near the time of the murder;
(5) Davis testified that appellant did not like Williams and suggested robbing him
more than once; (6) Dorsey told Detective O’Brien that appellant mentioned
getting back at Williams, that Williams carried dope and money with him, and that
appellant had called him that night seeking ammunition; (7) messages on
appellant’s phone to Davis’s number refer to “o boy” with no corresponding
evidence that she knew or had contact with Martin’s father, the person appellant
suggests “o boy” refers to; and, finally, (8) Villareal testified about his involvement
26
in an attempted robbery instigated by appellant and Martin, in which Villareal
supplied a .410 shotgun that would hold ammunition of the type that killed
Williams. 13 Moreover, in addition to the fact that the jury was entitled to
disbelieve appellant’s family alibi witnesses, the phone records in evidence cast
doubt on their testimony.
Accordingly, we conclude and hold––in accordance with the appropriate
standard of review––that the evidence is sufficient to support the jury’s verdict.
We overrule appellant’s first issue. Additionally, because the sufficiency
standard in relation to appellant’s community supervision revocation is a lesser
standard, we overrule his seventh issue complaining that there was insufficient
evidence to prove that he committed the new offense of capital murder. See
Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. App. 2006). We therefore
overrule his seventh issue as well.
Accomplice Witness Testimony
Appellant’s sixth issue likewise relates to the sufficiency of the evidence.
Appellant contends that there is not sufficient corroborating evidence to support
the trial court’s admission of Villareal’s testimony.
“A conviction cannot be had upon the testimony of an accomplice unless
corroborated by other evidence tending to connect the defendant with the offense
13
As we explain below, there is sufficient evidence to corroborate Villareal’s
testimony linking appellant to the murder.
27
committed[,] and the corroboration is not sufficient if it merely shows the
commission of the offense.” Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005).
When evaluating the sufficiency of corroboration evidence under the
accomplice-witness rule, we “eliminate the accomplice testimony from
consideration and then examine the remaining portions of the record to see if
there is any evidence that tends to connect the accused with the commission of
the crime.” Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). To
meet the requirements of the rule, the corroborating evidence need not prove the
defendant’s guilt beyond a reasonable doubt by itself. Id. Nor is it necessary for
the corroborating evidence to directly link the accused to the commission of the
offense. Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999), cert.
denied, 528 U.S. 1082 (2000). Rather, the direct or circumstantial evidence must
show that rational jurors could have found that it sufficiently tended to connect
the accused to the offense. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim.
App. 2011); Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App. 2009).
The sufficiency of nonaccomplice evidence is judged according to the
particular facts and circumstances of each case. Smith, 332 S.W.3d at 442;
Malone, 253 S.W.3d at 257. Circumstances that are apparently insignificant may
constitute sufficient evidence of corroboration. Trevino v. State, 991 S.W.2d 849,
852 (Tex. Crim. App. 1999).
“[P]roof that the accused was at or near the scene of the crime at or about
the time of its commission, when coupled with other suspicious circumstances,
28
may tend to connect the accused to the crime so as to furnish sufficient
corroboration to support a conviction.” Smith, 332 S.W.3d at 443. But a
defendant’s mere presence at the scene of a crime is insufficient to corroborate
accomplice testimony. Malone, 253 S.W.3d at 257.
We conclude and hold that the jury could have rationally found that other
evidence sufficiently tended to connect appellant to the offense such that it
corroborated Villareal’s testimony. This evidence includes the substantive and
locational phone records described above indicating that appellant was using
Martin’s phone, was near the location of the murder at the time it occurred, and
was communicating with Villareal around the same time; Battles’s testimony
about the blue Impala he saw with two occupants matching Villareal’s and
Cordova’s general descriptions; the red light camera video of the blue and silver-
looking cars appearing to be following each other and moving toward the location
of the apartments around the time of the shooting; Cesar’s testimony about
seeing a man with a similar jacket to the one found with appellant when he was
arrested and to the fact that Williams’s words sounded as if he knew the person
who then shot him; and Davis’s testimony and Dorsey’s interview responses
explaining why appellant would have wanted to rob Williams.
We overrule appellant’s sixth issue.
Leading Question
In his second issue, appellant contends that the trial court abused its
discretion by admitting testimony about State’s Exhibit 72, which is a photo of a
29
hand holding a handgun. The photo was taken on December 27, 2012 at 10:53
p.m. with Martin’s iPhone. The following exchange occurred between the State
and Special Agent Sedwick:
[State]: Were you able to obtain photographs from the camera roll of
Jonathan Martin’s phone?
[Sedwick]: Yes.
[State]: About how many photographs were on there? Was it many
or just a few?
[Sedwick]: There were many.
[State]: Now, anybody that has an iPhone probably knows there’s a
setting where you can turn on GPS or a locater [sic], right?
[Sedwick]: If they know to look for it, yeah.
[State]: Did this Apple iPhone 4s have that option in the settings?
[Sedwick]: Yes.
[State]: Okay. And what does that -- what does that do? If it’s
switched on, what does that mean?
[Sedwick]: If you have your location settings turned on, some
phones are more thorough than others with allowing you to select
which apps have access to your GPS location. And with this one, it
was turned on for the photos, so the GPS location was getting
added to the photos being taken.
[State]: Okay. So is it fair to say just in layman’s terms that when
this phone was taking pictures, it was also recording where on planet
Earth the phone was when the picture was taken?
[Defense]: Objection, Your Honor. This is leading.
THE COURT: Couldn’t the witness have answered that question
no?
30
[Defense]: I’m sorry, Your Honor?
THE COURT: I said couldn’t the witness have answered that
question no? Although he hadn’t answered yet, but it sounded to
me like the question, that could be answered yes or no.
[Defense]: Correct, Your Honor.
THE COURT: Doesn’t a leading question suggest an answer?
[Defense]: Correct, Your Honor.
THE COURT: So all that question is suggesting is to answer yes or
no. So I’ll overrule your objection.
“Leading questions are questions that suggest the desired answer, instruct
the witness how to answer, or put words into the witness’s mouth to be echoed
back.” Tinlin v. State, 983 S.W.2d 65, 70 (Tex. App.––Fort Worth 1998, pet.
ref’d). Unless a witness is a hostile witness, an adverse party, or a witness
identified with an adverse party, leading questions should not be used on direct
examination “except as necessary to develop the witness’s testimony.” Tex. R.
Evid. 611(c); Wheeler v. State, 433 S.W.3d 650, 654–55 (Tex. App.––Houston
[1st Dist.] 2014, pet. ref’d). The rule thus contemplates that some leading
questions––those “necessary to develop the witness’s testimony”––are
acceptable at the trial court’s discretion. Tex. R. Evid. 611(c); Newsome v. State,
829 S.W.2d 260, 269–70 (Tex. App.––Dallas 1992, no pet.); Myers v. State, 781
S.W.2d 730, 733 (Tex. App.––Fort Worth 1989, pet. ref’d).
Appellant argues as follows:
In this example, the problem was not that the question was
“yes or no”, but that the prosecutor suggested an answer that the
31
witness had not come up with. The question should be “Did the
witness adopt the prosecutor’s suggestion as his own testimony?”
Clearly here it did. The witness didn’t come up with the idea that the
picture indicated where on earth it was; the prosecutor came to that
conclusion and asked the witness to agree with him. The trial court
got the rule wrong. It was harmful in that it influenced the jury to
believe the prosecutor’s view of what the picture showed was
necessarily what the witness thought.
Here, the State’s question attempted to clarify Special Agent Sedwick’s
immediately preceding answer in simpler terms; however, in doing so, the
question “ask[ed] for confirmation . . . in the words of the prosecutor.” Newsome,
829 S.W.2d at 269. Therefore, the question was leading. Id.; Myers, 781
S.W.2d at 733. But because it was clarifying the witness’s prior answer, it was
not an improper leading question, and the trial court did not abuse its discretion
by overruling appellant’s objection. Newsome, 829 S.W.2d at 270; Myers, 781
S.W.2d at 733. We therefore overrule appellant’s second issue. 14
Villareal’s Prior Written Statement
In his third issue, appellant contends the trial court abused its discretion by
refusing to admit Villareal’s prior written statement that appellant contends
conflicted with Villareal’s trial testimony.
The State initially argues that appellant did not preserve error because he
sought to admit the statement only under rule 801 as an exception to hearsay.
But appellant clearly sought to admit the testimony as a prior inconsistent
14
Although appellant’s brief references generally that there were numerous
trial objections to leading questions by the State, this is the only specific question
he challenges.
32
statement of the witness. See Tex. R. Evid. 613, 801; State v. Rosseau, 396
S.W.3d 550, 555 (Tex. Crim. App. 2013) (“Rather than focus on the presence of
magic language, a court should examine the record to determine whether the trial
court understood the basis of a defendant’s request.”); Willover v. State, 70
S.W.3d 841, 847 & n.10 (Tex. Crim. App. 2002).
A witness’s prior inconsistent statement may be admitted if the questioning
attorney first lays a proper predicate. See Tex. R. Evid. 613(a)(1)–(4); Alvarez-
Mason v. State, 801 S.W.2d 592, 595 (Tex. App.––Corpus Christi 1990, no pet.).
But the prior statement must actually be inconsistent with the witness’s trial
testimony. Tex. R. Evid. 613(a); Alvarez-Mason, 801 S.W.2d at 595; see
Willover, 70 S.W.3d at 845–47. When a party attempts to admit evidence that
contains both consistent and inconsistent statements, it is the party’s
responsibility to “specify and extract” the inconsistent statements he wishes to
use for impeachment purposes. Willover, 70 S.W.3d at 847.
Here, Villareal’s prior statement contained both consistent and inconsistent
statements. Because appellant never attempted to admit only the inconsistent
statements, we conclude and hold that the trial court did not abuse its discretion
by excluding the evidence. Moreover, the trial court allowed appellant to
question Villareal thoroughly about the inconsistencies in his voluntary statement.
See Tex. R. App. P. 44.2(b). We overrule appellant’s third issue.
33
Admission of Photographs
In his fourth issue, appellant contends that the trial court abused its
discretion by admitting photographs that he argues are substantially more
prejudicial than probative. See Tex. R. Evid. 403.
In a rule 403 analysis, a trial court must balance (1) the inherent probative
force of the proffered item of evidence along with (2) the proponent's need for
that evidence against (3) any tendency of the evidence to suggest decision on an
improper basis, (4) any tendency of the evidence to confuse or distract the jury
from the main issues, (5) any tendency of the evidence to be given undue weight
by a jury that has not been equipped to evaluate the probative force of the
evidence, and (6) the likelihood that presentation of the evidence will consume
an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641–42 (Tex. Crim. App. 2006). When
photographs are admitted, we may also consider the number of photographs,
their gruesomeness, their level of detail, their size, whether they are in color or
black-and-white, whether they are close-ups, whether they depict a clothed or
nude body, the availability of other means of proof, and other circumstances
unique to the individual case. Williams v. State, 301 S.W.3d 675, 690 (Tex.
Crim. App. 2009), cert. denied, 560 U.S. 966 (2010). When a photograph’s
power “emanates from nothing more than what the defendant himself has done[,]
we cannot hold that the trial court has abused its discretion merely because it
34
admitted the evidence.” Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App.
1995).
Exhibit 15 is a photo of Williams lying on the ground with blood coming out
of his mouth. The visible part of his body is clothed, his eyes are open, and the
blood on his face and mouth is clearly visible. The photograph was admitted
during Officer Glapa’s testimony about his documentation of, and collection of
evidence from, the crime scene. Over appellant’s rule 403 objection, the State
contended that the photograph “shows the condition of the victim and the wound
that he received that night.”
The medical examiner testified that Williams choked on his own blood, and
Cesar testified that Williams was choking on his blood as he died. The
photograph is consistent with their testimony about what happened. Although
the photograph is of a dead person, it is no more gruesome than necessary and
was unlikely to have confused, distracted, or improperly swayed the jury.
Accordingly, we conclude and hold that the trial court did not abuse its discretion
by admitting the evidence over appellant’s rule 403 objection. See Williams, 301
S.W.3d at 692; Alami v. State, 333 S.W.3d 881, 890 (Tex. App.––Fort Worth
2011, no pet.) (“To the extent the photograph could be described as disturbing
because it depicts a lifeless Kumar, the photograph portrays no more than the
disturbing consequences of Alami’s felony-murder offense.”).
Exhibit 63 is a .410 shell casing that was not collected at the scene; the
State proffered it through Lau’s testimony to show what a typical .410 gauge shell
35
looks like. Appellant objected to the admission of the exhibit solely upon “it not
being proven up and also the relevance of it.” This general relevance objection is
not the same as a rule 403 objection, and nothing in the record indicates that the
trial court was aware that appellant intended to object on rule 403 grounds. See
Montgomery v. State, 810 S.W.2d 372, 388–89 (Tex. Crim. App. 1991) (op. on
reh’g); Lopez v. State, 200 S.W.3d 246, 251 (Tex. App.––Houston [14th Dist.]
2006, pet. ref’d). Thus, we will not address appellant’s rule 403 complaint
regarding this exhibit. See Tex. R. App. P. 33.1(a)(1); Pena v. State, 285 S.W.3d
459, 464 (Tex. Crim. App. 2009).
To the extent that appellant argues that the evidence was not relevant
under rule 401, we conclude and hold that the trial court did not abuse its
discretion. The photograph was admitted during Lau’s testimony about the type
of pellets and the shot cup that the medical examiners recovered from Williams’s
body. Lau testified that the photograph showed typically what an unfired casing
looked like, but she did not say that it was a casing recovered at the scene.
Because Lau’s testimony involved the mechanics of what happens to shotgun
ammunition once the gun is fired, we conclude and hold that the evidence was
relevant under rule 401 and that the trial court did not abuse its discretion by
admitting State’s Exhibit 63. 15 See Tex. R. Evid. 401.
15
Moreover, to the extent the evidence could be considered not to be
relevant to the issues at trial, the State’s questions and Lau’s answers––in
addition to appellant’s questions and her answers when taking her on voir dire in
the jury’s presence––made it clear that the photograph was only meant to be
36
Exhibit 72 is a photograph of a hand holding a handgun that was found on
Martin’s iPhone; the phone’s location settings showed that the photograph was
taken at 10:53 p.m. on December 27, 2012 on the east side of Fort Worth, near
the location of the shooting. Appellant objected that no one had identified a silver
handgun as being involved in the case, and the line of questioning was solely
about evidence found on Martin’s phone. The State responded that “one of the
previous witnesses [Villareal] testified that the reason he was contacted by
[appellant] and the other people charged was because their pistols did not work.
This is a photograph of a pistol [that] does not contain the clip, taken on the same
day.”
On appeal, appellant argues,
Clearly the picture of . . . Martin holding a gun had little if any
relevance to whether [appellant] was involved in the crime. If
anything it showed that . . . Martin needed bullets that night, not
[appellant] as Detective O’Brien claimed he heard . . . Dorsey say.
But even if this could be somehow concluded as relevant, the
showing of a gun likely caused the jury to think this gun was the gun
used in the felony murder, which it was not.
The photograph was probative of the location of Martin and his phone on the
night in question. Additionally, the photograph of the gun served to corroborate
Villareal’s testimony about why appellant and Martin came to his house and
asked for the shotgun. When the State asked Detective O’Brien if he recognized
where the photograph was taken, he replied that it looked like the inside of a
representative and was not evidence found at the scene. See Tex. R. App. P.
44.2(b).
37
Chevy Impala because that is what he drives. The State had a need for the
evidence to corroborate Villareal’s testimony and because the rest of its case
was based on appellant’s whereabouts with Martin, Martin’s phone, and the
crime scene. The evidence was not unduly repetitive, nor would it have confused
the jury; Martin’s taking a picture of himself with a gun would have been
irrelevant but for the evidence linking him to appellant, the location of the crime
scene, appellant’s activities that night, and appellant’s knowledge of Williams and
suggestions to Martin via text message that they rob “o boy” or “bro.” We
conclude and hold that the trial court did not abuse its discretion by admitting the
photograph over appellant’s rule 403 objection, and we overrule appellant’s
fourth issue.
Impeachment Witness
In his fifth issue, appellant contends that the trial court abused its
discretion by allowing the State to call a witness for the sole purpose of
impeaching him with inadmissible hearsay evidence. See Tex. R. Evid. 607.
Any party, including the party that called the witness, may attack that
witness’s credibility. Id. However, the court of criminal appeals has observed
that “the majority of jurisdictions still do not allow prior inconsistent statements to
be used under the guise of impeachment for the primary purpose of placing
substantive evidence before the jury which is not otherwise admissible.” Barley
v. State, 906 S.W.2d 27, 37 n.11 (Tex. Crim. App. 1995), cert. denied, 516 U.S.
1176 (1996). This restriction is analyzed in the context of a rule 403 analysis:
38
[W]e conclude the State’s knowledge that its own witness will testify
unfavorably is a factor the trial court must consider when
determining whether the evidence is admissible under Rule 403.
Analyzing lack of surprise or injury in terms of Rule 403 is preferable
not only because it comports with the plain language of Rule 607,
but because it will lead to the conclusion that a trial court abuses its
discretion under Rule 403 when it allows the State to admit
impeachment evidence for the primary purpose of placing evidence
before the jury that was otherwise inadmissible. The impeachment
evidence must be excluded under Rule 403’s balancing test
because the State profits from the witness’ testimony only if the jury
misuses the evidence by considering it for its truth. Consequently,
any probative value the impeachment testimony may have is
substantially outweighed by its prejudicial effect.
Hughes v. State, 4 S.W.3d 1, 5 (Tex. Crim. App. 1999) (footnote omitted). The
key issue is the State’s knowledge—before calling the witness—that the witness
will testify unfavorably. Kelly v. State, 60 S.W.3d 299, 301 (Tex. App.––Dallas
2001, no pet.).
When the State told the trial judge of its intent to call Dorsey as a witness,
the trial judge asked, “Is this the one that doesn’t want to be here?” The State
replied affirmatively. The State’s first questions to Dorsey involved whether he
remembered the prosecutor and two investigators coming to his house the week
before the trial. Dorsey denied remembering such a meeting. He said he did not
remember the State’s serving a subpoena on him, nor did he remember telling
the prosecutor that he did not intend to appear. He further denied not showing
up to court pursuant to the subpoena. He only “kind of” remembered having
been arrested and brought to court earlier in the week of the trial because he
said he had taken promethazine and Xanax that day. He denied knowing a
39
person by the name of L.A., and he denied knowing appellant. He also denied
having thrown a sign at appellant when walking into the courtroom.
Dorsey likewise did not recall having given a statement to Detective
O’Brien. When the State began questioning Dorsey about his statement to
Detective O’Brien, appellant objected as follows: “Dorsey just testified that he
doesn’t remember giving any statement back in . . . December. So . . . we see
where the State is going with this and plans to read out and go through any sort
of statement. This witness has just testified he doesn’t remember . . . giving a
statement.” The trial court overruled the objection stating,
I believe if they can prove he gave a statement, then they’re entitled
to impeach him through the use of that statement, so I’m not going
to tell her she can’t ask him about a statement unless you’ve got
some good proof that he really did not give a statement.
When the State asked Dorsey about a specific statement he had made
during his interview with Detective O’Brien, Dorsey did not say that he did not
recall; he simply denied having made the statement. He also denied that
appellant had contacted him and said he “planned to rob his baby mama’s
boyfriend for some cocaine and some money” and that appellant had asked him
for ammunition. He denied knowing Martin or Martin’s cousin. Finally, during the
State’s direct examination of Detective O’Brien about his interview with Dorsey,
appellant objected on hearsay grounds but only after Detective O’Brien had
already answered several questions about Dorsey’s statement.
40
It is unclear whether appellant’s objection at trial comports with his
complaint on appeal because it is unclear whether the trial court understood
appellant’s first objection to mean that the State had called Dorsey solely for the
purpose of impeaching him with inadmissible hearsay evidence, knowing in
advance that he would deny having made the statement to Detective O’Brien.
The trial court did appear to understand that appellant was objecting to the
State’s attempting to impeach Dorsey with the admission of the statements.
However, to the extent that appellant preserved his appellate complaint, we
nevertheless conclude and hold that the trial court did not abuse its discretion by
overruling appellant’s objection because the record does not show that the State
knew that Dorsey would deny having made the statements to Detective O’Brien.
Instead, it shows only that the State knew Dorsey did not want to appear or
testify at trial. See, e.g., Ruth v. State, 167 S.W.3d 560, 566 (Tex. App.––
Houston [14th Dist.] 2005, pet. ref’d); Kelly, 60 S.W.3d at 302 (“In this case,
although the State ‘suspected’ its witness could turn, it had no reason to know
this for certain.”); see also Barley, 906 S.W.2d at 37 n.11 (noting that in cases in
which State could be charged with “subjective primary intent of placing otherwise
inadmissible substantive evidence before the jury,” the witnesses had already
recanted their statements “in prior sworn testimony at a previous trial or
hearing”). Regardless, if the trial court had abused its discretion by admitting
Dorsey’s statement, the admission would be harmless in light of the record as a
whole; the phone records established a link between Dorsey and appellant,
41
including the text to appellant’s phone from Dorsey’s the morning after the
murder. See Tex. R. App. P. 44.2(b); Motilla v. State, 78 S.W.3d 352, 356–57
(Tex. Crim. App. 2002). Appellant did not object to the evidence related to
Dorsey’s phone number, and the phone records were crucial linchpins of the
State’s case. Therefore, we overrule appellant’s fifth issue.
Conclusion
Having overruled appellant’s seven issues, we affirm the trial court’s
judgments.
PER CURIAM
PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: October 15, 2015
42