Justin McGee v. State ( 2015 )


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  • Affirmed and Memorandum Opinion filed May 28, 2015.
    In The
    Fourteenth Court of Appeals
    NO. 14-14-00067-CR
    JUSTIN MCGEE, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 262nd District Court
    Harris County, Texas
    Trial Court Cause No. 1387993
    MEMORANDUM OPINION
    In this capital-murder case we address whether the trial court abused its
    discretion in admitting into evidence testimony regarding a previous drug
    transaction between the complainant and the defendant. We also assess the harm,
    if any, resulting from the trial court’s refusal to charge the jury on accomplice-
    witness testimony. We affirm.
    I.           FACTUAL AND PROCEDURAL BACKGROUND
    Cameron Dansby, the complainant, and Dominick Sean McDonald sold
    marijuana to appellant Justin McGee and appellant’s associate, Anthony Avalos.
    The complainant met appellant and Avalos in the parking lot of the Chesterfield
    apartment complex, where McDonald kept an apartment.           The complainant
    delivered the drugs to appellant and Avalos in July 2011 (hereinafter “the July
    transaction.”). Upon delivery of the drugs, appellant and Avalos claimed they
    already had paid another associate of the complainant and McDonald. Believing
    appellant and Avalos, the complainant returned to McDonald’s apartment without
    payment for the drugs.   After McDonald and the complainant realized appellant
    and Avalos had not paid anyone, the complainant and McDonald chased appellant
    and Avalos. The complainant and McDonald followed appellant and Avalos to
    Avalos’s home. Once there, the complainant and McDonald drew weapons and
    confronted appellant and Avalos. Appellant and Avalos paid for the drugs and the
    complainant and McDonald left.
    A few weeks later, appellant, Avalos, and associates Arthur McSwain,
    Marquis Cook, Bryant Carter, and Richard Bartholomew (hereinafter “the
    Associates”) returned to the Chesterfield apartment complex and kidnapped the
    complainant as he was walking toward McDonald’s apartment. Appellant, Avalos,
    and the Associates drove the complainant to a remote location at the back of
    another apartment complex, where appellant, Avalos, and McSwain shot the
    complainant dead.
    A resident at the Chesterfield complex heard the kidnapping in progress and
    went to investigate. The resident heard voices saying “get him, grab him.” The
    resident walked outside and saw the complainant laying face-down on the ground
    while three or four other individuals, who were pointing guns at the complainant,
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    kicked the complainant and harassed him as they forced him toward the parking
    lot. Appellant put a gun into the resident’s stomach and asked the resident if the
    resident wanted to live. The resident replied that he did and appellant told the
    resident to return to his home.
    The same night, the resident saw some of the Associates return to the
    Chesterfield apartment complex. A female (Brittany Watts) was with them. The
    female walked up the stairs to McDonald’s apartment, spoke briefly with someone
    at the door, and then ran back down the stairs. As she ran, the individuals fled the
    premises. Police found the complainant’s body the following morning.
    The resident informed police about what he had seen. The resident was able
    to give the police descriptions of the individuals involved in the kidnapping and
    descriptions of suspicious vehicles he saw at the apartment complex at the time of
    the kidnapping. McDonald told police about the July transaction with appellant
    and Avalos and directed the police to Avalos’s residence, where the police
    identified cars matching descriptions given by McDonald and the resident.
    Appellant was charged with the offense of capital murder. At appellant’s
    jury trial, the resident identified appellant as the man who had pressed a gun into
    his stomach. A friend of appellant’s, Francisco Segovia, testified that he gave
    appellant a ride to Avalos’s home and then to the Chesterfield apartment complex
    on the night the complainant was murdered. Segovia testified that he waited
    outside the complex after dropping off appellant and then followed Avalos’s car
    when he saw Avalos leave. Segovia stated that he followed Avalos’s vehicle to
    another apartment complex and, again, waited outside. This time, Segovia heard
    gunshots, saw Avalos’s car leave, and then followed the car back to Avalos’s
    home. At Avalos’s home, Segovia heard Avalos complain that the others had
    forced the complainant into Avalos’s car, which Avalos said was a mistake.
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    Evidence is relevant if it tends to make the existence of any consequential fact
    more or less probable than it is without the evidence. Tex. R. Evid. 401; Moralez
    v. State, 
    450 S.W.3d 553
    , 569 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
    Extraneous-offense evidence is relevant if it logically makes elemental facts, such
    as intent or knowledge more or less probable, or if it makes the defense’s evidence
    attempting to undermine these elemental facts more or less probable. Montgomery
    v. State, 
    810 S.W.2d 372
    , 387–88 (Tex. Crim. App. 1991) (op. on reh’g).
    Appellant argues the July transaction is irrelevant because it does not make any
    elemental facts more or less probable.
    The trial court did not abuse its discretion by implicitly concluding that the
    July transaction is relevant for several reasons. First, the July transaction gives
    some context to the relationship between appellant and the complainant. Second, it
    explains Bartholomew’s testimony that appellant and his associates were asking
    the complainant to inform them of the location of “the door,” as well as
    Bartholomew’s testimony that Avalos said the complainant knew appellant,
    Avalos, and the Associates and knew where they lived. Third, the July transaction
    demonstrates appellant’s and Avalos’s willingness and interest in using dishonest
    tactics to get drugs for free. All of these facts make the existence of consequential
    facts more likely than they would be without the evidence of the July transaction.
    The trial court did not err in determining that evidence of the July transaction is
    relevant to the charged offense. See Hernandez v. State, 
    171 S.W.3d 347
    , 360–61
    (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
    2. Potential for Prejudice
    Appellant argues the trial court abused its discretion in admitting evidence of
    the July transaction because the probative value of the evidence was substantially
    outweighed by its potential prejudice under Texas Rule of Evidence 403. We
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    complainant knew who they were and where they lived. Avalos projected that had
    they not done what they did, the complainant would have retaliated.
    The jury found appellant guilty as charged and the trial court sentenced
    appellant to life without the possibility of parole.
    II.            ANALYSIS
    A. Admitting Evidence of the Extraneous Marijuana Transaction
    In his first three issues, appellant asserts the trial court erred in admitting
    into evidence testimony regarding the July transaction because the evidence was
    irrelevant, more prejudicial than probative, and prohibited under Texas Rule of
    Evidence 404(b). Appellate courts review a trial court’s ruling on the admissibility
    of evidence under an abuse-of-discretion standard. See Coble v. State, 
    330 S.W.3d 253
    , 272 (Tex. Crim. App. 2010); Mayreis v. State, —S.W.3d—, 
    2015 WL 1346045
    , at *6 (Tex. App.—Houston [14th Dist.] 2015, no pet.) Article 38.36 of
    the Texas Code of Criminal Procedure, which applies in prosecutions for murder,
    provides in relevant part:
    In all prosecutions for murder, the state or the defendant shall be
    permitted to offer testimony as to all relevant facts and circumstances
    surrounding the killing and the previous relationship existing between
    the accused and the deceased, together with all relevant facts and
    circumstances going to show the condition of the mind of the accused
    at the time of the offense.
    Tex. Code Crim Proc. art. 38.36(a) (West, Westlaw through 2013 3d C.S.).
    Evidence admissible under Article 38.36 still must meet the requirements of the
    rules of evidence. Smith v. State, 
    5 S.W.3d 673
    , 679 (Tex. Crim. App. 1999).
    1. Relevance
    Appellant argues that the trial court abused its discretion in admitting
    testimony regarding the July transaction because that testimony is irrelevant.
    5
    Evidence is relevant if it tends to make the existence of any consequential fact
    more or less probable than it is without the evidence. Tex. R. Evid. 401; Moralez
    v. State, 
    450 S.W.3d 553
    , 569 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
    Extraneous-offense evidence is relevant if it logically makes elemental facts, such
    as intent or knowledge more or less probable, or if it makes the defense’s evidence
    attempting to undermine these elemental facts more or less probable. Montgomery
    v. State, 
    810 S.W.2d 372
    , 387–88 (Tex. Crim. App. 1991) (op. on reh’g).
    Appellant argues the July transaction is irrelevant because it does not make any
    elemental facts more or less probable.
    The trial court did not abuse its discretion by implicitly concluding that the
    July transaction is relevant for several reasons. First, the July transaction gives
    some context to the relationship between appellant and the complainant. Second, it
    explains Bartholomew’s testimony that appellant and his associates were asking
    the complainant to inform them of the location of “the door,” as well as
    Bartholomew’s testimony that Avalos said the complainant knew appellant,
    Avalos, and the Associates and knew where they lived. Third, the July transaction
    demonstrates appellant’s and Avalos’s willingness and interest in using dishonest
    tactics to get drugs for free. All of these facts make the existence of consequential
    facts more likely than they would be without the evidence of the July transaction.
    The trial court did not err in determining that evidence of the July transaction is
    relevant to the charged offense. See Hernandez v. State, 
    171 S.W.3d 347
    , 360–61
    (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
    2. Potential for Prejudice
    Appellant argues the trial court abused its discretion in admitting evidence of
    the July transaction because the probative value of the evidence was substantially
    outweighed by its potential prejudice under Texas Rule of Evidence 403. We
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    presume for the sake of argument that appellant preserved error on this complaint
    in the trial court. Texas Rule of Evidence 403, entitled “Exclusion of Relevant
    Evidence on Special Grounds,” states:
    Although relevant, evidence may be excluded if its probative value is
    substantially outweighed by the danger of unfair prejudice, confusion
    of the issues, or misleading the jury, or by considerations of undue
    delay, or needless presentation of cumulative evidence.
    Tex.R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries
    a presumption that relevant evidence will be more probative than prejudicial.
    
    Montgomery, 810 S.W.2d at 389
    ; 
    Moralez, 450 S.W.3d at 569
    . A proper Rule 403
    analysis by either the trial court or a reviewing court includes, but is not limited to,
    the following factors: (1) the probative value of the evidence; (2) the potential to
    impress the jury in some irrational, yet indelible, way; (3) the time needed to
    develop the evidence; and (4) the proponent’s need for the evidence. De La Paz v.
    State, 
    279 S.W.3d 336
    , 349 (Tex. Crim. App. 2009); Erazo v. State, 
    144 S.W.3d 487
    , 489 (Tex. Crim. App. 2004).
    Appellant asserts the evidence regarding the July transaction prejudiced the
    jury because it showed the jury that appellant had a “corrupt nature” and that he is
    a drug dealer or drug user. Appellant’s participation in the July transaction evinces
    both his willingness to engage in dishonest tactics and his interest in obtaining
    drugs. The evidence of the extraneous offense is probative because it compels one
    to conclude that several facts of consequence are more probable. See Wyatt v.
    State, 
    23 S.W.3d 18
    , 26 (Tex. Crim. App. 2000).             And, there is substantial
    evidence that appellant committed the extraneous offense. See 
    id. (holding that
    the
    first factor is related to the strength of the evidence that appellant in fact committed
    the extraneous offense). Several witnesses confirmed that the event occurred and
    that appellant was a participant. The July transaction demonstrates appellant’s
    7
    relationship to the complainant and shows that appellant had tried to take drugs
    from the appellant before without paying for them, but that appellant did not have
    all the information necessary to commit a robbery. It therefore explains why
    appellant and his associates were asking the complainant the location of the
    “door.”      This explanation makes Bartholomew’s testimony that appellant was
    involved in kidnapping appellant more probable. The information also makes
    Bartholomew’s testimony that Avalos concluded it was necessary to kill appellant
    more probable because it explains how the complainant knew Avalos and
    appellant, and it shows the complainant’s willingness to retaliate against Avalos
    and appellant. The first factor weighs heavily in favor of finding that the probative
    value of the evidence is not substantially outweighed by its potential to cause
    prejudice.
    The second and third factors weigh in favor of finding the evidence
    prejudicial.    The evidence that appellant is involved in buying drugs has the
    potential to impress the jury in an irrational way. And, the State spent more than a
    minimal amount of time developing the evidence through the testimony of many
    witnesses.
    Under the fourth factor, the State’s need to develop evidence of the July
    transaction was significant.    The defense hammered on the lack of physical
    evidence connecting appellant to the crime. Still, the testimony regarding the July
    transaction was probative; it provided context necessary to explain the testimony of
    other witnesses.     The testimony established appellant’s familiarity with the
    complainant’s drug-selling business and its potential monetary value, as well as
    appellant’s familiarity with the complainant’s apartment complex.            It also
    explained appellant’s motivation to kidnap and then murder appellant, either to
    retaliate against the complainant or to rob the complainant and McDonald. The
    8
    evidence was thus important to explaining the relationship among the parties and
    to laying out the State’s theory of the case, particularly to provide motive — to
    account for why appellant was driven to commit the murder. We conclude that a
    balance of the factors shows that the trial court did not abuse its discretion in
    concluding that the potential for prejudice did not substantially outweigh the
    probative value of the evidence. See Tex. R. Evid. 403, 
    Hernandez, 171 S.W.3d at 361
    .
    3. Rule 404(b)
    Appellant argues the trial court erred in admitting evidence of the July
    transaction because the evidence was prohibited under Texas Rule of Evidence
    404(b). Under Rule 404(b), evidence of an extraneous offense may be admitted if
    it has relevance apart from its tendency to prove the character of a person in order
    to show that the person acted in conformity therewith. See Tex. R. Evid. 404(b);
    
    Hernandez, 171 S.W.3d at 360
    . Evidence has relevance apart from this character-
    conformity purpose when the evidence tends to establish some elemental fact, such
    as proof of motive, intent, plan, or absence of mistake or accident. See Tex. R.
    Evid. 404(b); 
    Hernandez, 171 S.W.3d at 360
    .
    Appellant argues the State violated Rule 404(b) by using the evidence of the
    July transaction to show that appellant was a criminal and therefore in murdering
    the complainant appellant was acting in conformity with his criminal character.
    We conclude evidence of the July transaction is relevant for other purposes. It
    supported the State’s argument that appellant had a plan, intent, and motive to
    murder the complainant. Appellant’s plan to kidnap made sense only in light of
    the evidence that appellant was familiar with the complainant’s business but
    needed more information to steal the complainant’s drugs. Appellant’s intent to
    kill the complainant made sense in light of the July transaction and Bartholomew’s
    9
    testimony regarding Avalos’s summation of the complainant’s likely retaliation if
    the complainant survived the kidnapping. The evidence was admissible under
    Rule 404(b) because it tended to establish appellant’s intent and motivation.
    Appellant makes much of the fact that several other witnesses testified that
    appellant was motivated to rob the complainant and argues the trial court should
    query the State regarding what direct evidence the State’s other witnesses might
    present regarding the defendant’s motive to commit any particular crime.
    Appellant suggests that the State should not have been allowed to admit this
    evidence because the State presented direct evidence of appellant’s motive. We
    need not entertain this argument in this appeal, however, because the evidence of
    the July transaction is necessary to explain the State’s direct evidence of
    appellant’s intent and motive. Appellant contends that Bartholomew provided
    direct evidence of appellant’s motive for the kidnapping and murder and that the
    motive was to force the complainant to disclose the location of cocaine. But, this
    direct evidence of appellant’s immediate reasoning for kidnapping the complainant
    makes sense only in light of the information about the July transaction. Moreover,
    although Bartholomew testified that the motivation for the kidnapping was to force
    the complainant to disclose the location of the cocaine, Bartholomew’s testimony
    regarding the motivation for the murder was different. Bartholomew explained
    that Avalos was motivated by the fear that the complainant would retaliate if they
    did not kill him. This statement makes sense only in light of the evidence of the
    July transaction.
    We conclude the evidence of the July transaction was admissible for
    permissible purposes. See Tex. R. Evid. 404(b); 
    Hernandez, 171 S.W.3d at 361
    (holding that evidence of prior drug transaction was permissible under 404(b)
    because evidence was necessary to establish relationship in order to prove intent).
    10
    The trial court did not abuse its discretion in admitting the testimony regarding the
    July transaction into evidence under Rule 404(b). See Tex. R. Evid. 404(b);
    
    Hernandez, 171 S.W.3d at 361
    .
    Having rejected all of appellant’s contentions regarding the admission of the
    evidence of the July transaction, we overrule issues one, two, and three.
    B. Failing to Give Accomplice-Witness Instruction to the Jury
    In appellant’s fourth issue, appellant asserts the trial court erred in refusing
    to charge the jury on Watts as a potential accomplice witness. A conviction cannot
    be secured upon the testimony of an accomplice unless corroborated by other
    evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc.
    Art. 38.14; Cocke v. State, 
    201 S.W.3d 744
    , 747 (Tex. Crim. App. 2006). The
    purpose of the accomplice-witness instruction is to remind the jury that it cannot
    use the accomplice’s testimony to convict the defendant unless there also exists
    some non-accomplice testimony tying the defendant to the offense.            
    Id. An accomplice-witness
    instruction is required if the witness participated with a
    defendant before, during, or after the commission of a crime, acting with the
    required culpable mental state or if the witness is liable under a party-conspiracy
    theory. Zamora v. State, 
    411 S.W.3d 504
    , 512 (Tex. Crim. App. 2013); Paredes v.
    State, 
    129 S.W.3d 530
    , 536 (Tex. Crim. App. 2004).
    Presuming for the sake of argument that the trial court erred in failing to
    charge the jury, this court may reverse the conviction only if appellant suffered
    harm. Almanza v. State, 
    686 S.W.2d 157
    , 171 (Tex. Crim. App. 1985); Lewis v.
    State, 
    448 S.W.3d 138
    , 143 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
    The degree of harm required for reversal depends on whether an objection to the
    error was made at trial. 
    Id. If no
    objection was made, we reverse only if the error
    resulted in “egregious harm” such that appellant was denied a “fair and impartial
    11
    trial.” 
    Almanza, 686 S.W.2d at 171
    ; 
    Lewis, 448 S.W.3d at 143
    . If an objection
    was made at trial, as in this case, we reverse only if appellant demonstrates “some”
    harm from the error. Ngo v. State, 
    175 S.W.3d 738
    , 744 (Tex. Crim. App. 2005);
    
    Lewis, 448 S.W.3d at 143
    .      Whether analyzing the record for some harm or
    egregious harm, the reviewing court should consider the entire jury charge, the
    state of the evidence, the arguments of counsel, and any other relevant information
    revealed by the record of the trial as a whole. Sanchez v. State, 
    376 S.W.3d 767
    ,
    774 (Tex. Crim. App. 2012). The harm must be actual, not merely theoretical.
    
    Almanza, 686 S.W.2d at 174
    .
    To measure the sufficiency of the corroborating evidence, we eliminate the
    accomplice evidence from the record and determine whether the remaining
    inculpatory evidence tends to connect the defendant to the offense. Malone v.
    State, 
    253 S.W.3d 253
    , 257 (Tex. Crim. App. 2008). This evidence may be direct
    or circumstantial. Munoz v. State, 
    853 S.W.2d 558
    , 559 (Tex. Crim. App. 1993).
    The corroborating evidence need not prove the defendant’s guilt beyond a
    reasonable doubt. Malone v. 
    State, 253 S.W.3d at 257
    . Rather, the corroborating
    evidence need only link the defendant in some way to the commission of the crime.
    
    Id. We conclude
    the record contains sufficient non-accomplice evidence to
    connect appellant to the commission of the crime. McDonald testified about the
    July transaction. He knew that appellant was involved in the July transaction and
    he followed appellant and Avalos back to Avalos’s home after the July transaction.
    The resident identified suspicious vehicles in the apartment complex during the
    kidnapping, including a champagne-colored Cadillac. The Cadillac belonged to
    Segovia. Segovia’s phone records showed he was in frequent communication with
    appellant.
    12
    The resident specifically identified appellant in court, and to a police officer,
    as the individual who pressed a gun into his stomach during the kidnapping.
    Appellant argues that the resident’s identification was impeached because
    appellant did not identify appellant in a prior police lineup, but the resident
    described several of appellant’s identifying features to the police immediately after
    the incident, including that appellant wore dreadlocks with lighter tips.         The
    resident testified that he was “100%” positive appellant was the person who
    commanded him at gunpoint to return to his residence. Appellant argued that the
    resident’s identification was not credible because the resident said he could
    identify appellant based on appellant’s tattoo, but the resident explained that the
    reason he did not pick appellant’s picture out of a police lineup was because the
    tattoo was too prominent in that photo. The resident explained, though, that he
    remembered the tattoo, but when he was interacting with appellant, appellant’s
    forehead was wrinkled and those wrinkles made the tattoo look less prominent.
    The resident later saw photos where the tattoo was less prominent and in his
    review of those photos he identified appellant.
    The State also admitted into evidence a note sent to Bartholomew in jail.
    The handwriting in the note matches handwriting in notes confirmed to have been
    written by appellant; Bartholomew also testified that the note came from appellant.
    In the note, appellant asks Bartholomew not to testify and explains that the State’s
    case depends on all of them “sink[ing]” each other. Appellant wrote that he
    understood that Bartholomew wanted to try to testify against him to get out of jail
    earlier, but appellant reminded Bartholomew that jail is what comes with being
    involved in the streets.
    Non-accomplice evidence included an eye-witness identification, evidence
    of a prior relationship between appellant and the complainant and evidence of a
    13
    motivation for appellant to murder the complainant as well as a note from appellant
    in which appellant demonstrated an intimate familiarity with the details
    surrounding the murder.     This evidence tends to connect appellant with the
    commission of the offense. Given the strength of this evidence, we hold that the
    jury would not have disregarded the accomplice-witness testimony. See 
    Herron, 86 S.W.3d at 634
    . Appellant failed to show that he suffered “some” harm by the
    failure to include the accomplice-witness instruction. See 
    Malone, 253 S.W.3d at 259
    . Because we conclude that any error by the trial court in failing to charge the
    jury on the accomplice-witness rule was harmless, we overrule appellant’s fourth
    issue. See 
    id. III. CONCLUSION
    The trial court did not abuse its discretion in admitting into evidence
    testimony regarding the July transaction. Any error in the trial court’s failure to
    charge the jury on Watts’ status as a potential accomplice witness was harmless.
    The trial court’s judgment is affirmed.
    /s/               Kem Thompson Frost
    Chief Justice
    Panel consists of Chief Justice Frost and Justices Boyce and McCally.
    Do Not Publish — TEX. R. APP. P. 47.2(b).
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