Artis Lee Pollard v. State ( 2012 )

WITHDRAWN 10/11/12
REISSUED 10/11/12
IN THE
TENTH COURT OF APPEALS
No. 10-11-00101-CR
ARTIS LEE POLLARD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 10-02398-CRF-85
OPINION
In nine issues, appellant, Artis Lee Pollard, challenges his capital-murder
conviction pertaining to the shooting death of Terrell McCoy. See TEX. PENAL CODE
ANN. § 19.03(a)(2) (West Supp. 2011). We affirm.
I. BACKGROUND
On the evening of December 22, 2006, Bennie Hawkins had a Christmas party at
a small house he owned in Bryan, Texas.1 At this party, Hawkins and twenty to twenty-
five others fried fish, played cards, and shot craps. Several witnesses testified that the
dice game was the main attraction at the party and that approximately $10,000 to
$15,000 was in play at any given time. Among the people in attendance were Hawkins,
McCoy, Xavier Young, Patrick Young, Marion Young, David Rayford, and Brandon
Williams. Most of these men referred to themselves using aliases. In particular,
witnesses confirmed that Marion was known as “Two-Tone” or “Tone”; that McCoy
was referred to as “Mississippi”; and that Williams’s alias was “Smoke.” None of the
witnesses who testified at trial saw Pollard at the party that night, and they denied
knowing him. However, Xavier noted that there was a lot of tension between Smoke
and Mississippi and that they stared at each other all night.2 Nevertheless, the party
continued on into the wee hours of the night.
At around 1:00 a.m., Xavier went out the back door of the house to smoke a
cigarette when he was confronted by two men with guns. With a gun in his face, Xavier
was ordered to get to the ground. Several witnesses testified that both men had braided
hair, bandannas covering their faces, Creole accents, and nine-millimeter pistols.
Witnesses saw a third robber—who had braids, a bandanna covering his face, and a
1 Witnesses testified that Hawkins’s house was secluded and that the area surrounding the house
was pitch dark on the night of the incident.
2Two-Tone also observed the tension between Smoke and Mississippi, noting that Smoke and
Mississippi “had some words or something out” at the party.
Pollard v. State Page 2
Creole accent—running from around the side of the house carrying an AK-47. The
third robber ordered the two other men to shoot Xavier, but before they could do so,
Xavier slammed the back door and ran inside towards the restroom. The robbers shot
through the door and came inside.
Once the robbers were inside the house, people scattered, including eight to ten
people who followed Xavier into the restroom. The robbers ordered everyone to empty
their pockets and come into the living room. After emptying his pockets, Xavier sat
down on a loveseat next to Mississippi. The robbers threatened that they would kill
everyone if they found money in people’s shoes or in other places. One of the robbers
checked Two-Tone’s shoes and found nothing. Shortly thereafter, one of the robbers
stood up and shot Mississippi in the head several times. Xavier stated that Mississippi
did not appear to be worried about the robbery and that Mississippi was shot before he
could answer Xavier’s question as to the identity of the robbers. One of the bullets
ended up hitting Xavier in the hip and exiting out his back. After being shot, Xavier
fainted, and Mississippi died immediately. Later, Xavier was taken to the hospital for
medical treatment.
Subsequently, police investigated the scene of the crime. Paul Martinez, an
investigator with the Brazos County Sheriff’s Department, found four nine-millimeter
shell casings on the floor, a bullet lodged in a door jamb, another bullet underneath a
cushion in the couch, and several blood drops and smears that appeared to be fresh.
Martinez sent the items collected from the crime scene to be DNA-tested. Initially,
forensic investigators were unable to identify the source of a couple of the blood drops
Pollard v. State Page 3
found inside Hawkins’s house. In the meantime, Martinez questioned the people who
attended the party that night, including Smoke. Martinez later determined that Pollard
was a person of interest.
However, Pollard proved to be difficult for Martinez to track down. At trial,
Pollard testified that he fled his hometown of Brenham, Texas, when friends notified
him that the police wanted to question him. Pollard insisted that he fled because he had
outstanding misdemeanor warrants, though he admitted that he was aware that
Mississippi had been killed and that blood from an unknown source, which was later
confirmed to be Pollard’s, was found at the scene of the crime. In his flight from law
enforcement, Pollard used an alias, was aware that police used a helicopter to look for
him, and told friends that he needed to change the plates on his car and that Texas law
enforcement did not have jurisdiction to arrest him at his final destination—his place of
birth, New Orleans, Louisiana.
Law enforcement finally caught up with Pollard, resulting in his arrest in St.
Bernard Parish, Louisiana. Martinez interviewed Pollard on June 5, 2009, and after
waiving his Miranda rights, Pollard agreed to speak with Martinez. In his conversation
with Martinez, Pollard stated that he was at a bar in Giddings, Texas, the night that
Mississippi was killed. Pollard denied shooting Mississippi, and he denied ever having
been to Hawkins’s house. During a second conversation with Martinez, Pollard
reiterated that he was at a club in Giddings on the night of the murder and that he had
never been to Hawkins’s house. Pollard added that he had only been to Bryan to go to
Pollard v. State Page 4
the mall or the movies, not to shoot dice. When asked about the blood drops found
inside Hawkins’s house, Pollard denied that the blood was his.
Pollard was subsequently transported back to Texas, where he was incarcerated
in the Washington County jail. During Pollard’s stay in the Washington County jail,
Jailer Christopher Kulow received a telephone call from Texas Department of Public
Safety Sergeant Robert Neuendorf, who was also investigating the case. Sergeant
Neuendorf asked Kulow if he could isolate Pollard to obtain a sample of his DNA.
Apparently, Pollard had been issued a cup and a spoon when he was admitted to the
Washington County jail, and he had made it a point to wash the cup and spoon several
times a day to prevent prison officials from obtaining a sample of his DNA. 3 Kulow
offered Pollard the opportunity to make a telephone call in a detoxification cell (“detox
cell”). According to Kulow, the “detox cell was empty and had been cleaned previously
by a floor worker,” and the telephone in the “detox cell” had better reception than
others. Pollard accepted Kulow’s offer and proceeded to talk on the telephone for
approximately three hours. While making his rounds, Kulow observed Pollard’s
actions and noted that Pollard was the only inmate in the “detox cell.”
When it was time for the inmates to eat, Kulow offered to let Pollard eat his meal
in the “detox cell.” Pollard agreed. When Pollard finished with his meal and his
telephone calls, he stood at the bars of the “detox cell” until he was escorted back to his
cell.4 After escorting Pollard back to his cell, Kulow returned to the “detox cell” to
3 At some point, police requested that Pollard provide a DNA sample, but he refused to comply.
Pollard v. State Page 5
retrieve the cup and the spoon. While wearing gloves, Kulow picked up the cup and
spoon, placed it in a bag, and contacted Sergeant Neuendorf, who came by to pick up
the items an hour later.
Pollard’s DNA on the cup and the spoon were compared to the blood drops
found at Hawkins’s house, and as mentioned earlier, it was determined that Pollard
was the source of the unknown blood drops found at Hawkins’s house. Police later
obtained a search warrant to take a buccal swab from Pollard, which further confirmed
that he was the source of the unknown blood drops at Hawkins’s house.
Pollard was charged by indictment with capital murder. See id. Prior to trial on
this matter, Pollard filed four separate motions to suppress, challenging: (1) DNA
evidence collected from the cup and spoon Pollard handled in the “detox cell”; (2)
statements Pollard made to Martinez; (3) evidence obtained from the collection of
Pollard’s saliva; and (4) evidence obtained from Pollard’s cellular telephone. The trial
court denied all of Pollard’s motions to suppress and entered numerous findings of fact
and conclusions of law.
Trial commenced in this matter on February 21, 2011, and Pollard testified on his
own behalf. In his testimony, Pollard offered yet another explanation regarding his
whereabouts on the night of the incident. Pollard admitted that he was at Hawkins’s
house that night and that he was shooting dice with everyone else. Pollard stated that
he was caught switching dice—cheating—while playing and that he was subsequently
4 Kulow testified that Pollard was not handcuffed when he was moved from his cell to the “detox
cell” and back.
Pollard v. State Page 6
assaulted by others who were playing, which resulted in Pollard getting cut on his
elbow and bleeding inside the house. When asked why he lied to police about his
whereabouts that evening, Pollard responded, “Because my name was never brought
up in the investigation from the police who was [sic] there.” Nevertheless, Pollard
testified that, after getting thrown out of the party, he went to Brenham, Texas. He
denied participating in the robbery, and he emphasized that he has tattoos on his hand
and forearms which are visible to others.5 Pollard also acknowledged that he had not
been truthful to police about other aspects of the case, and that he had communicated to
Keith Williams, the father of his sister’s child, that: (1) he needed to change the plates
on his car; (2) he was 100-percent loyal and to tell everybody that they need not worry
because he was not going to talk; and (3) he was certain that law enforcement did not
have his DNA.
At the conclusion of the evidence, the jury convicted Pollard of the charged
offense. The trial court assessed punishment at life imprisonment without parole in the
Institutional Division of the Texas Department of Criminal Justice. This appeal
followed.
II. POLLARD’S CONFRONTATION-CLAUSE OBJECTION
In his first issue, Pollard argues that the trial court erred in permitting the State
to introduce the results of scientific testing based on the work done by a person other
than the State’s expert witness at trial, even though Pollard objected that the testimony
5 Pollard seemed to suggest that, because eyewitnesses and the police did not document the fact
that one of the assailants had tattoos on his hands and forearms, he could not be identified as a
participant in the robbery.
Pollard v. State Page 7
violated the Confrontation Clause of the United States and Texas Constitutions. See
U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10.
A. Applicable Law
The Confrontation Clause of the Sixth Amendment to the United States
Constitution provides that, “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to be confronted with the witnesses against him.” U.S. CONST. amend VI. This
procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas,
380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273
S.W.3d 671, 680 (Tex. Crim. App. 2008). Consistent with the Confrontation Clause
guarantee, a testimonial hearsay statement may be admitted in evidence against a
defendant “only where the declarant is unavailable, and only where the defendant has
had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 68, 124
S. Ct. 1354, 1373-74, 158 L. Ed. 2d 177 (2004); see De La Paz, 273 S.W.3d at 680. “[T]he
Crawford rule reflects the Framers’ preferred mechanism (cross-examination) for
ensuring that inaccurate out-of-court testimonial statements are not used to convict an
accused.” Whorton v. Bockting, 549 U.S. 406, 418, 127 S. Ct. 1173, 1182, 167 L .Ed. 1
(2007); De La Paz, 273 S.W.3d at 680. “Generally, speaking, a hearsay statement is
‘testimonial’ when the surrounding circumstances objectively indicate that the primary
purpose of the interview or interrogation is to establish or prove past events potentially
relevant to later criminal prosecution.” De La Paz, 273 S.W.3d at 680. Whether a
statement is testimonial is a question of law. Id.; see Langham v. State, 305 S.W.3d 568,
576 (Tex. Crim. App. 2010).
Pollard v. State Page 8
B. Discussion
Here, Pollard complains that the State offered the testimony of Brandi Mohler, a
forensic scientist for the Texas Department of Public Safety (“DPS”), in lieu of Jane
Burgett, the DPS forensic scientist who actually DNA-tested the seized spoon and cup
and compared the DNA profile to that of the blood drops found at Hawkins’s house.
Specifically, Pollard argued at the hearing on one of his motions to suppress that: “To
the extent that Brandi Mohler is relying upon swabbing done by another expert who is
not subject to cross-examination, we would object on confrontation grounds under the
state and federal Constitution.” Pollard later clarified his objection, stating the
following: “We consider this lynch pin. The swabbing of the spoon that—from which
DNA was extracted is testimonial evidence. We contend it—in fact, it meets the
requirements of testimonial evidence under Crawford and would object to any evidence
offered by the expert Brandi Mohler that relies on the testimonial evidence, the
swabbing of the spoon.” The trial court subsequently denied Pollard’s objection.
Pollard then requested a running objection to testimony regarding the swabbing of the
spoon, which the trial court granted.
Mohler testified that she “did not process the evidence.” However, she noted
that: “I actually extracted DNA from the swabs of the teaspoon and the cup and
subjected them to PCR, which I was talking about is the copying of the DNA. And then
I compared that to a profile that was obtained from Item 7 which is [the blood found
near] the rear point of entry [of Hawkins’s house] and is—and I compared it to Item
P1[,] which is the teaspoon.” Nevertheless, Mohler later acknowledged that she relied
Pollard v. State Page 9
on the work of another analyst, Burgett, in forming her opinions in this case. And, as
Pollard notes, the seized cup and spoon were delivered to the DPS lab on July 22, 2009;
but, Mohler was not certified to perform DNA analyses until September 19, 2009.
Despite this testimony, Mohler also testified that the DPS lab received a known
saliva sample from Pollard on March 1, 2010. Mohler, having obtained certification to
perform DNA analyses at this point, conducted the DNA testing on the known saliva
sample and compared it to the blood drops found at Hawkins’s house. Mohler’s testing
revealed that Pollard was the source of the blood drops.
Because this issue is of a constitutional dimension, we must reverse Pollard’s
conviction unless we are satisfied beyond a reasonable doubt that the alleged error did
not contribute to the conviction or punishment. See TEX. R. APP. P. 44.2(a). Courts
reviewing whether an error in admitting an out-of-court statement in violation of the
Confrontation Clause is harmless beyond a reasonable doubt should consider several
factors: (1) the importance of the hearsay statements to the State’s case; (2) whether the
hearsay statement was cumulative of other evidence; (3) the presence or absence of
evidence corroborating or contradicting the hearsay testimony on material points; and
(4) the overall strength of the prosecution’s case. Davis v. State, 203 S.W.3d 845, 852
(Tex. Crim. App. 2006). In conducting this harm analysis, we consider the likelihood
that the constitutional error adversely affected “the integrity of the process leading to
the conviction.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007).
Assuming without deciding that the trial court erred in admitting Mohler’s
testimony that relied on Burgett’s testing of the seized cup and spoon, we can say,
Pollard v. State Page 10
beyond a reasonable doubt, that the trial court’s admission of the complained-of
evidence did not contribute to Pollard’s conviction or punishment. See Scott, 227 S.W.3d
at 690-91; see also Davis, 203 S.W.3d at 852. In fact, the complained-of evidence was: (1)
cumulative of Mohler’s testimony regarding her DNA-testing of Pollard’s saliva; (2) not
absolutely necessary to the State’s case because the results of Mohler’s DNA-testing of
Pollard’s saliva proved the same fact; and (3) corroborated by Mohler’s DNA-testing of
Pollard’s saliva. See Davis, 203 S.W.3d at 852. Furthermore, the DNA tests on Pollard’s
saliva confirmed that he had lied to police and placed Pollard at the scene of the crime
on the night of the incident—both facts that strengthened the State’s case. See id.
In addition, Pollard also appears to argue that his right to confront Burgett was
violated regarding all of the items she tested. However, when reviewing the record,
Pollard’s Confrontation Clause objection was limited to Mohler’s reliance on Burgett’s
testing of the spoon. Thus, Pollard’s complaint on appeal does not comport with his
objection in the trial court. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346,
349 (Tex. Crim. App. 2002) (stating that a complaining party must make a timely and
specific objection to preserve error for appellate review); see also Wright v. State, 154
S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d) (noting that points of error on
appeal must correspond or comport with objections and arguments made at trial)
(citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998))). “Where a trial
objection does not comport with the issue raised on appeal, the appellant has preserved
nothing for review.” Wright, 154 S.W.3d at 241; see Ibarra v. State, 11 S.W.3d 189, 197
(Tex. Crim. App. 1999). Accordingly, we overrule Pollard’s first issue.
Pollard v. State Page 11
III. POLLARD’S MOTIONS TO SUPPRESS EVIDENCE
In his second through fifth issues, Pollard complains about the trial court’s denial
of his motions to suppress evidence pertaining to the warrantless seizure of his DNA
from the cup and spoon, the DNA-testing of his saliva, evidence obtained from his cell
phone, and statements he made to Martinez.6
A. Standard of Review
We review the trial court’s ruling on a motion to suppress evidence for an abuse
of discretion, using a bifurcated standard. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim.
App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give
“almost total deference” to the trial court’s findings of historical fact that are supported
by the record and to mixed questions of law and fact that turn on an evaluation of
credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo the trial
court’s determination of the law and its application of law to facts that do not turn upon
an evaluation of credibility and demeanor. Id. When the trial court has not made a
finding on a relevant fact, we imply the finding that supports the trial court’s ruling, so
long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.
6 To the extent that Pollard argues that the actions subject to his motions to suppress violated the
Texas Constitution, we note that Pollard fails to analyze, argue, or provide authority to establish that his
protection under the Texas Constitution exceeds or differs from that provided to him by the Federal
Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993) (declining to analyze an
appellant’s state constitutional argument regarding the suppression of his confession because appellant
failed to analyze, argue, or provide authority establishing that his protection under the Texas
Constitution exceeded or differed from the protections afforded under the Federal Constitution). In fact,
he acknowledges that the Texas Constitution does not provide protections greater than the Fourth
Amendment to the Federal Constitution. Thus, we will not address Pollard’s state constitutional
arguments and, instead, analyze his complaints within the context of the Federal Constitution. See Green
v. State, 934 S.W.2d 92, 96 n.1 (Tex. Crim. App. 1996); Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim.
App. 1993); see also Olivarez v. State, 171 S.W.3d 283, 288 n.2 (Tex. App.—Houston [14th Dist.] 2005, no
pet.).
Pollard v. State Page 12
Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We
will uphold the trial court’s ruling if it is reasonably supported by the record and is
correct under any theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587,
590 (Tex. Crim. App. 2006).
When a trial judge makes explicit fact findings regarding a motion to suppress,
an “appellate court [must first] determine whether the evidence (viewed in the light
most favorable to the trial court’s ruling) supports these fact findings.” Kelly, 204
S.W.3d at 818; see State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) (“When
the trial judge makes explicit findings of fact, we afford those findings almost total
deference as long as the record supports them . . . .”). “The appellate court then reviews
the trial court’s legal ruling[s] de novo unless the trial court’s supported-by-the-record
explicit fact findings are also dispositive of the legal ruling.” Kelly, 204 S.W.3d at 818.
B. DNA obtained from the cup and spoon
In his second issue, Pollard contends that the trial court abused its discretion in
denying his motion to suppress evidence obtained from the warrantless seizure of his
DNA from the cup and spoon taken from the “detox cell.” In the trial court, Pollard
initially argued that he had a reasonable expectation of privacy in the cup and spoon
that was collected by Kulow. However, in his motion to suppress, Pollard amended his
argument to state that he has a reasonable expectation of privacy in his DNA. The State
countered that Pollard did not have a reasonable expectation of privacy in his DNA and
that he abandoned the seized cup and spoon when he returned to his cell. As stated
Pollard v. State Page 13
earlier, the trial court denied Pollard’s motion to suppress and entered numerous
findings of fact and conclusions of law.
Essentially, Pollard asserts that his Fourth-Amendment right to be free from
unreasonable seizures was violated. See U.S. CONST. amend. IV. The United States
Supreme Court has held that the applicability of the Fourth Amendment turns on
whether “the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a
‘legitimate expectation of privacy’ that has been invaded by government action.”
Hudson v. Palmer, 468 U.S. 517, 525, 104 S. Ct. 3194, 3199, 82 L. Ed. 2d 393 (1984) (citing
Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220 (1979)). The
Texas Court of Criminal Appeals has stated that the burden of establishing a legitimate
expectation of privacy is upon the defendant. See Villarreal v. State, 935 S.W.2d 134, 138
(Tex. Crim. App. 1996) (citing Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App.
1988)). “To carry this burden, the accused must normally prove: (a) that by his
conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine
intention to preserve something as private; and (b) that circumstances existed under
which society was prepared to recognize his subjective expectation as objectively
reasonable.” Id.
However, the collection of DNA from prisoners has been found to be reasonable
in light of an inmate’s diminished privacy rights, the minimal intrusion involved, and
the legitimate government interest in using DNA to investigate crime. See Hudson, 468
U.S. at 525-26, 104 S. Ct. at 3200 (“[W]e hold that society is not prepared to recognize as
legitimate any subjective expectation of privacy that a prisoner might have in his prison
Pollard v. State Page 14
cell . . . . The recognition of privacy rights for prisoners in their individual cells simply
cannot be reconciled with the concept of incarceration and the needs and objectives of
penal institutions.”); Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413 (5th Cir. 2004);
Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003) (per curiam) (holding that the
collection of DNA samples from felons does not violate the Fourth Amendment); Oles v.
State, 993 S.W.2d 103, 108 (Tex. Crim. App. 1999) (“[W]hile an appellant is incarcerated,
he has no expectation of privacy in the jail cell . . . .”); see also Drewery v. State, No. 08-04-
00201-CR, 2005 Tex. App. LEXIS 5898, at **21-22 (Tex. App.—El Paso July 28, 2005, pet.
ref’d) (mem. op., not designated for publication).
In the present case, Pollard declined to voluntarily provide police with a sample
of his DNA and told Williams that the police did not have his DNA.7 In addition,
Pollard presented testimony that he washed his cup and spoon several times a day to
prevent law enforcement from collecting his DNA. However, as stated in the trial
court’s findings of fact, Pollard voluntarily accepted prison officials’ offer to make
telephone calls in the “detox cell.” Moreover, the evidence adduced at trial
demonstrated that Pollard did not object to eating in the “detox cell” and using a
different prison-issued Styrofoam cup and plastic spoon. And unlike the cup and
7 Pollard also asserts that police improperly collected his DNA because the collection of DNA
samples from pre-trial detainees is not permissible according to section 411.148 of the Texas Government
Code. See TEX. GOV’T CODE ANN. § 411.148 (West Supp. 2011). This particular portion of the government
code pertains to the mandatory collection of DNA samples from incarcerated inmates for the creation of a
DNA database. See id. §§ 411.141-.148 (West Supp. 2011). In particular, section 411.148 of the Texas
Government Code requires a DNA sample from individuals who are confined in a penal institution after
sentencing and before admission to the Texas Department of Criminal Justice and allows prison officials
to use force if it is necessary to collect such a sample. See id. § 411.148(h), (i)(1)(A). However, because
Pollard voluntarily left his DNA behind on the cup and spoon located in the “detox cell,” we do not find
these statutory provisions to be relevant.
Pollard v. State Page 15
spoon he left behind in his cell, Pollard did not make any attempt to keep the cup and
spoon issued in the “detox cell,” nor did he request to keep or wash those items to
prevent police from collecting his DNA. In addition, the record does not contain any
evidence indicating that Pollard was told that he could not take the cup and spoon with
him.
When he was finished making his telephone calls, Pollard stood at the bars and
waited to be escorted back to his cell. Ostensibly, Pollard abandoned the cup and spoon
in the “detox cell”; therefore, in this instance, he did not demonstrate a genuine
intention to keep his DNA private.8 See McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim.
App. 1997) (“[A]bandonment is primarily a question of intent to be inferred from words
spoken, acts done, and other objective facts and relevant circumstances, with the issue
not being in the strict property-right sense, but rather whether the accused had
voluntarily discarded, left behind, or otherwise relinquished his interest in the property
so that he could no longer retain a reasonable expectation of privacy with regard to it at
the time of the search.”); Brimage v. State, 918 S.W.2d 466, 507 (Tex. Crim. App. 1994)
(op. on reh’g) (en banc) (“We have held that an abandonment of property occurs if (1)
the defendant intended to abandon the property and (2) his decision to abandon the
property was not due to police misconduct.”); Hawkins v. State, 758 S.W.2d 255, 257
8 Pollard contends that the collection of his DNA from the cup and spoon “was not through
appellant’s voluntary conduct, but purely by virtue of the control exercised over him through his
incarceration.” Despite this assertion, Pollard does not specifically mention any conduct that would
amount to police misconduct and, thus, undermine the trial court’s conclusion of law that Pollard
abandoned the cup and spoon in the “detox cell.” Furthermore, we find it curious that Pollard went to
great efforts to protect his DNA with regard to the cup and spoon in his cell but made no efforts
whatsoever to protect the DNA on the cup and spoon given to him while he was in the “detox cell.” In
addition, the record indicates that Pollard willingly went to the “detox cell” to make the telephone calls
and to eat, undermining any assertion of control or coercion by the police.
Pollard v. State Page 16
(Tex. Crim. App. 1988) (“The general rule in Texas with respect to abandoned property
has been that ‘when police take possession of abandoned property, there is not a seizure
under the Fourth Amendment.” (quoting Clapp v. State, 639 S.W.2d 949, 953 (Tex. Crim.
App. 1982))); see also Hudson v. State, 205 S.W.3d 600, 604-05 (Tex. App.—Waco 2006,
pet. ref’d) (holding that the warrantless seizure of a defendant’s DNA from a Dr.
Pepper can that was voluntarily thrown in the trash did not violate the Fourth
Amendment because the defendant’s action of throwing the can in the trash indicated
an intent to abandon the can).
Because prisoners have diminished privacy rights during incarceration, the
collection of DNA from prisoners has been found to be reasonable in light of an
inmate’s diminished privacy rights, the minimal intrusion involved, and the legitimate
government interest in using DNA to investigate crime, and because Pollard abandoned
the cup and spoon in the “detox cell,” we conclude that Pollard failed to satisfy his
burden of proving a legitimate expectation of privacy in either the cup and spoon or his
own DNA. See Villarreal, 935 S.W.2d at 138. Accordingly, we cannot say that the trial
court abused its discretion in denying Pollard’s motion to suppress the seizure of his
DNA from the cup and spoon found in the “detox cell.” See Crain, 315 S.W.3d at 48; see
also Guzman, 955 S.W.2d at 88-89. We overrule Pollard’s second issue.
C. DNA testing of Pollard’s saliva and evidence obtained from his cell phone
In his third and fourth issues, Pollard also argues that the trial court abused its
discretion in denying his motion to suppress DNA evidence collected from his saliva
and evidence collected from his cell phone. Specifically, Pollard alleges:
Pollard v. State Page 17
As the trial court found, the subsequent warrants for appellant’s
saliva and the contents of his cell phone were obtained as a result of the
information from the warrantless seizure. . . . When the results of DNA
comparison based on the warrantless seizure is [sic] removed from the
warrant applications, they fail to establish probable cause. The State
offered no other basis to establish probable cause. The trial court erred in
denying appellant’s motions to suppress the evidence obtained as a result
of the search warrant for appellant’s saliva and cell phone.
(Citation omitted).
Clearly, Pollard’s complaints about the evidence obtained from his saliva and the
cell phone are premised on his assumption that the DNA evidence obtained from the
cup and spoon from the “detox cell” is inadmissible as an illegal seizure. However,
because we have already concluded that the collection of Pollard’s DNA evidence from
the cup and spoon from the “detox cell” did not amount to an illegal seizure and
because the result of the DNA-testing demonstrated that Pollard was the source of the
blood drops at Hawkins’s house, we cannot say that the State lacked probable cause to
obtain the search warrants to test Pollard’s saliva and search the contents of his cell
phone. See Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (stating that
probable cause exists where the known facts and circumstances are sufficient to warrant
a man of reasonable prudence in the belief that contraband or evidence of a crime will
be found); Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (“The cornerstone
of the Fourth Amendment and its Texas equivalent is that a magistrate shall not issue a
search warrant without first finding ‘probable cause’ that the particular item will be
found in a particular location.” (citing U.S. CONST. amend. IV; TEX. CONST. art. I, § 9)).
Based on the record before us, we cannot conclude that the trial court abused its
Pollard v. State Page 18
discretion in denying Pollard’s motions to suppress this evidence. See Crain, 315 S.W.3d
at 48; see also Guzman, 955 S.W.2d at 88-89. Accordingly, Pollard’s third and fourth
issues are overruled.
D. Pollard’s Statements to Martinez
Though Pollard complains in his fifth issue that the trial court abused its
discretion in denying his motion to suppress statements he made to Martinez in
Louisiana, he does not provide any argument or authority in support of his contention.
Texas Rule of Appellate Procedure 38.1(i) states that, to present an issue for review, a
brief must contain appropriate citations to authorities. TEX. R. APP. P. 38.1(i). Because
Pollard does not cite to any authority and does not provide any argument in support of
this issue, we conclude that Pollard’s fifth issue is inadequately briefed and presents
nothing for review. See id.
IV. SUFFICIENCY OF THE EVIDENCE
In his sixth issue, Pollard contends the evidence supporting his conviction in this
case is insufficient. Specifically, Pollard argues that he “denied involvement . . ., and no
witness identified [him] as shooting Terrell McCoy or participating in the robbery.”
A. Standard of Review
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Pollard v. State Page 19
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
responsibility of the trier of fact fairly 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. "Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction." Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of "all of the
evidence" includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct.
at 2792-93. Further, direct and circumstantial evidence are treated equally:
"Circumstantial evidence is as probative as direct evidence in establishing the guilt of an
actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the
factfinder is entitled to judge the credibility of witnesses and can choose to believe all,
some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d
459, 461 (Tex. Crim. App. 1991).
The sufficiency of the evidence is measured by reference to the elements of the
offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under a hypothetically-correct jury charge,
the State was required to prove beyond a reasonable doubt that Pollard intentionally
Pollard v. State Page 20
committed a murder in the course of committing or attempting to commit robbery,
among other things. See TEX. PENAL CODE ANN. § 19.03(a)(2).
B. Law of Parties
Here, the jury was charged on the law of parties and conspiracy. See TEX. PENAL
CODE ANN. §§ 7.01-.02 (West 2011); see also Montoya v. State, 810 S.W.2d 160, 165 (Tex.
Crim. App. 1989). When a jury is charged on the law of parties, a person may be
convicted as a party to an offense, if the offense is committed by his own conduct or by
the conduct of another for which he is criminally responsible. TEX. PENAL CODE ANN. §
7.01(a). In determining whether the evidence is sufficient to prove that a defendant
participated as a party in committing an offense, we look to “events before, during, and
after the commission of the offense.” Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.
App. 2006).
A person is a conspirator under the law of parties if, in the attempt to carry out a
conspiracy to commit one felony, another felony is committed by one of the
conspirators. See TEX. PENAL CODE ANN. § 7.02(b). If the felony actually committed
should have been anticipated as a result of carrying out the conspiracy, then all
conspirators are guilty of the felony actually committed, even if they had no intent to
commit it. See id.
It is well-settled that a person can be found guilty of capital murder as a
conspiring party under section 7.02(b). See id.; Johnson v. State, 853 S.W.2d 527, 535 (Tex.
Crim. App. 1992); see also Demus v. State, No. 05-09-00175-CR, 2010 Tex. App. LEXIS 429,
at **7-9 (Tex. App.—Dallas Jan. 26, 2010, pet. ref’d) (mem. op., not designated for
Pollard v. State Page 21
publication). If the evidence demonstrates that the defendant conspired with others to
commit robbery and, during the robbery, one of the co-conspirators commits capital
murder, the defendant can be held criminally responsible for capital murder if it was in
furtherance of the conspiracy’s unlawful purpose and should have been anticipated.
See Longoria v. State, 154 S.W.3d 747, 755 (Tex. App.—Houston [14th Dist.] 2004, pet.
ref’d). Moreover, Texas courts have held that a conspirator should have anticipated
that a murder would occur when he knew that a co-conspirator was carrying a gun. See
Longoria, 154 S.W.3d at 756-57; see also Demus, 2010 Tex. App. LEXIS 429, at *8.
C. Discussion
The evidence showed that, on the night of the incident, Hawkins held a party at
his house, which was located in a secluded area, and that many of those who attended
the party shot dice and bet thousands of dollars on the game. In addition, witnesses
testified that they did not see Pollard at the party, which undermined Pollard’s
testimony at trial that he gambled at the party but was thrown out and assaulted when
he was caught cheating. Pollard’s testimony was further undermined by his prior
statements to police that he had never been to Hawkins’s house and that the blood
found inside the house was not his. In any event, witnesses recalled that Smoke was in
attendance and that he and Mississippi, the deceased, had words during the game and
appeared to be hostile towards each other. Xavier testified that he saw Smoke leave the
party approximately fifteen minutes before the robbery occurred. Later, while going
outside to smoke a cigarette, Xavier was accosted by two men with bandannas over
their mouths. A third man ran from around the side of the house to where the others
Pollard v. State Page 22
were. Xavier recalled that all of the men were carrying firearms, had braids, and had
Creole accents.
Once inside the house, the three robbers had all of the party attendees congregate
in the living room and hand over their money. At some point, one of the robbers stated
that there should have been more money and demanded to inspect Two-Tone’s shoes
and socks. Shortly thereafter, Mississippi was shot and killed. Pollard admitted that he
knew Mississippi and that he was friends with Smoke. In addition, Pollard’s blood was
found inside the house, and several witnesses testified that the blood was not inside the
house prior to the robbery. Moreover, Pollard acknowledged that he was from New
Orleans, Louisiana, and that he had braids at the time of the robbery.
Further, the State presented evidence regarding Pollard’s flight from law
enforcement during the investigation of the incident, which, as the Texas Court of
Criminal Appeals has held, is also indicative of guilt. See Clayton v. State, 235 S.W.3d
772, 780 (Tex. Crim. App. 2007); see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.
App. 2004). In particular, Pollard admitted to going to great lengths to avoid being
arrested, including using an alias, fleeing to Louisiana in an attempt to avoid the
jurisdiction of Texas law enforcement, and indicating to Williams that he needed to
change the plates on his car. Pollard also testified that he told Williams that: there was
no way investigators had his DNA because he washed his cup and spoon two or three
times a day after they initially requested a DNA sample from him; he was 100 percent
loyal; and that nobody needed to worry because he was not going to talk to
investigators.
Pollard v. State Page 23
Viewing the evidence in the light most favorable to the jury’s verdict, we find
that a rational juror could conclude that the combined and cumulative force of all of the
evidence indicated that Pollard was a party to the robbery and killing of Mississippi
under either section 7.01(a) or 7.02(b) of the penal code, see TEX. PENAL CODE ANN. §§
7.01(a), 7.02(b); thus, we hold that the evidence is sufficient to affirm Pollard’s
conviction under the law of parties. See Lucio, 351 S.W.3d at 894; see also Hooper, 214
S.W.3d at 13. Pollard’s sixth issue is overruled.
V. THE JURY CHARGE AND INSTRUCTIONS ON LESSER-INCLUDED OFFENSES
In his final three issues, Pollard asserts that the trial court erred in denying his
requests for instructions in the jury charge about the lesser-included offenses of murder,
aggravated robbery, and robbery.
An offense qualifies as a lesser-included offense of the charged offense if: (1) it is
established by proof of the same or less than all the facts required to establish the
commission of the offense charged; (2) it differs from the offense charged only in that a
less serious injury or risk of injury to the same person, property, or public interest
suffices to establish the commission of the offense; (3) it differs from the offense charged
only in that a less culpable mental state suffices to establish its commission; or (4) it
consists of an attempt to commit the offense charged or an otherwise included offense.
TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). To determine whether a defendant
is entitled to an instruction on a lesser-included offense, the court conducts a two-
pronged test. See Ex parte Watson, 306 S.W.3d 259, 272-73 (Tex. Crim. App. 2009); Hall v.
State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first prong of the test requires
Pollard v. State Page 24
the court to use the “cognate pleadings” approach to determine whether an offense is a
lesser-included offense of another offense. The first prong is satisfied if the indictment
for the greater-inclusive offense either: “(1) alleges all of the elements of the lesser-
included offense, or (2) alleges elements plus facts (including descriptive averments,
such as non-statutory manner and means, that are alleged for purposes of providing
notice) from which all of the elements of the lesser-included offense may be deduced.”
Ex parte Watson, 306 S.W.3d at 273.
Both statutory elements and any descriptive averments alleged in the
indictment for the greater-inclusive offense should be compared to the
statutory elements of the lesser offense. If a descriptive averment in the
indictment for the greater offense is identical to an element of the lesser
offense, or if an element of the lesser offense may be deduced from a
descriptive averment in the indictment for the greater-inclusive offense,
this should be factored into the lesser-included-offense analysis in asking
whether all of the elements of the lesser offense are contained within the
allegations of the greater offense.
Id. This inquiry is a question of law. Hall, 225 S.W.3d at 535.
The second prong asks whether there is evidence that supports giving the lesser-
included-offense instruction to the jury. Id. at 536. A defendant is entitled to a
requested instruction on a lesser-included offense when the proof for the charged
offense subsumes the proof required to establish the lesser-included offense and some
evidence in the record would permit a rational jury to find that if the defendant is
guilty, he is guilty only of the lesser-included offense. Id. Anything more than a
scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. A
lesser-included-offense instruction is required when the evidence establishes the lesser-
included offense as a valid, rational alternative to the charged offense. Id.
Pollard v. State Page 25
However, the Texas Court of Criminal Appeals has held that:
A defendant’s own testimony that he committed no offense, or testimony
that otherwise shows that no offense occurred at all, is not adequate to
raise the issue of a lesser-included offense. In Bignall v. State, we
concluded, “if a defendant either presents evidence that he committed no
offense or presents no evidence, and there is no evidence otherwise
showing that he is guilty of a lesser-included offense, then a charge on a
lesser-included offense is not required.” The evidence must establish that
if a defendant is guilty, he is guilty only of the lesser[-]included offense.
Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (internal citations omitted).
Here, Pollard told police on two different occasions that he had never been to
Hawkins’s house. Later at trial, Pollard testified on his own behalf and told the jury
that he did attend the party to shoot dice but that he was thrown out and assaulted for
cheating. Throughout his testimony and his statements to police, Pollard denied
committing any offense. Because Pollard denied committing any offense and because
we have already concluded that the evidence is sufficient to support his conviction for
capital murder, we cannot say that the trial court erred in denying his request for
instructions in the jury charge on the lesser-included offenses of murder, aggravated
robbery, and robbery. See Lofton, 45 S.W.3d at 852 (citing Wesbrook v. State, 29 S.W.3d
103, 113 (Tex. Crim. App. 2000); Arevalo v. State, 943 S.W.2d 887, 889-90 (Tex. Crim. App.
1997); Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). We overrule Pollard’s
seventh, eighth, and ninth issues.
VI. CONCLUSION
Having overruled all of Pollard’s issues on appeal, we affirm the judgment of the
trial court.
Pollard v. State Page 26
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed May 30, 2012
Publish
[CR25]
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