Jamar James Render v. State of Texas ( 2011 )

Opinion filed August 18, 2011
In The
Eleventh Court of Appeals
__________
Nos. 11-09-00263-CR & 11-09-00268-CR
__________
JAMAR JAMES RENDER, Appellant
V.
STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause Nos. CR19974 & CR19973
OPINION
In Cause No. 11-09-00263-CR (Trial Court Cause No. CR19974), the jury convicted
Jamar James Render of aggravated assault. The jury assessed punishment, enhanced by a prior
felony conviction, at confinement for fifteen years. In Cause No. 11-09-00268-CR (Trial Court
Cause No. CR19973), the jury convicted appellant of manslaughter. The jury assessed
punishment, enhanced by a prior felony conviction, at confinement for thirty years. The trial
court sentenced appellant accordingly and ordered that the sentences run concurrently. We
affirm.
The Charged Offenses
In Cause No. 11-09-00263-CR, the indictment alleged that, on or about February 28,
2008, appellant committed the offense of aggravated assault by “intentionally, knowingly, or
recklessly caus[ing] serious bodily injury to Brent McCormick Tomlinson by hitting him in the
head with his hand, a metal object or unknown object, or by causing him to fall and hit his head,
or by kicking him.” The jury convicted appellant of the charged offense. In Cause No. 11-09-
00268-CR, the indictment alleged that, on or about February 28, 2008, appellant committed the
offense of murder by “intentionally or knowingly caus[ing] the death of an individual, namely,
James Lee Holland, by hitting him in the head with his hand, a metal object or unknown object,
or by causing him to fall and hit his head, or by kicking him.” The jury convicted appellant of
the lesser included offense of manslaughter.
Issues on Appeal
Appellant does not challenge the sufficiency of the evidence to support his convictions.
Appellant presents nine points of error for review. In his first three points, appellant contends
that the trial court erred by admitting testimony that violated the Confrontation Clause and that
was inadmissible hearsay. In his fourth point, appellant contends that the trial court erred by
denying his motion to quash the indictments. In his fifth and sixth points, appellant asserts that
the trial court erred by admitting evidence of an extraneous assault. In his seventh and eighth
points, appellant contends that the trial court erred by denying his requested jury instructions on
self-defense. In his ninth point, appellant argues that the trial court erred by informing the jury
during punishment deliberations that appellant’s sentences would be served concurrently.
The Evidence at Trial
We have reviewed the evidence, and we will summarize it here. The record shows that,
during the night of February 27, 2008, appellant was involved in an altercation with Holland and
Tomlinson. At that time, appellant lived in apartment 1002 at the Southside Village Apartments.
Kristi Ramirez and Pablo Celedon lived in apartment 1006 at the Southside Village
Apartments. Their apartment was two doors down from appellant’s apartment. Ernestina
Celedon was Pablo’s mother. Kristi knew appellant and his girlfriend, Rebecca York. Kristi
testified that, on February 27, 2008, Ernestina came to her apartment. Ernestina told her that
2
people were fighting outside. Kristi said that she could hear a loud argument going on outside.
Kristi and Ernestina left the apartment to go to the store. As she left the apartment, Kristi could
still hear people arguing. She testified that the argument was between appellant and Holland.
Although Kristi did not know Holland at that time, she later learned his identity. Kristi said that
she saw a hat in the middle of the parking lot and a man lying facedown on the ground in the
handicap parking spot in front of appellant’s apartment. The record shows that the man was
Tomlinson. Ernestina testified that Tomlinson was shaking like he was dying and that there was
a lot of blood on the ground around him. Kristi said that appellant was standing in his doorway.
Kristi heard appellant tell Holland that Tomlinson was going to be okay but that he had never
been hit that hard before. Kristi said that Holland walked away and appeared to be drunk. Kristi
called the police.
On February 27, 2008, at 7:57 p.m., Brownwood Police Officer Troy Grusendorf was
dispatched to the apartment complex. When he arrived at the complex, he saw Holland walking
across the parking lot and talking on a cell phone. Officer Grusendorf testified that Tomlinson
was lying facedown on the pavement. Officer Grusendorf saw vomit and blood on the ground by
Tomlinson and could smell the odor of alcohol coming from the concrete. When
Officer Grusendorf arrived, appellant was standing over Tomlinson and shaking his shoulder to
see whether he was okay. Officer Grusendorf testified that Michael Pierson was at the scene.
Appellant and Pierson told Officer Grusendorf that Tomlinson was intoxicated.
Brownwood Police Officer Sky Self also responded to the scene. Officer Self saw
Holland walking in the shadows. Upon Officer Self’s request, Holland came to him. Officer
Self said that Holland was acting extremely nervous and had alcohol on his breath. Holland told
Officer Self that there had been an altercation. Officer Self drove Holland to the scene where he
said the altercation had occurred. Officer Self said that Tomlinson was lying facedown on the
pavement with blood everywhere around him. Officer Self said that Tomlinson was coughing
and moaning and that appellant was standing over him.
Brownwood Police Sergeant James Arthur Shannon also arrived at the scene. When he
arrived, Tomlinson was lying facedown in the parking lot, and appellant and Pierson were near
him. Sergeant Shannon said that it looked like Holland had been in a fight and had been
drinking. Sergeant Shannon said that Holland had an abrasion or red mark under his left eye.
3
Officer Grusendorf believed that Tomlinson had been assaulted because he had a severe
laceration on the top of his head. Appellant told Officer Grusendorf that nothing happened in
front of his apartment. Appellant told Officer Self that he did not know Tomlinson and Holland.
Appellant said that Tomlinson and Holland fought each other and that he tried to break up the
fight. He also told Officer Self that he was trying to help Tomlinson get up. Sergeant Shannon
spoke with appellant and Pierson and asked to see their hands for possible injuries. Appellant
and Pierson did not have any injuries to their hands. Sergeant Shannon said that neither
appellant nor Pierson looked like they had been in a fight. Sergeant Shannon said that appellant
was calm and cooperative. Appellant told Sergeant Shannon that he heard an argument and then
went outside his apartment and saw a man on the ground. The officers did not find any weapon
that might have been used in an assault. They did not see any beer bottles, broken bottles,
broken glass, beer cans, or spilled liquid in the area where they found Tomlinson.
Roberta Herrera, Mary Ramirez, and Fidencio Ramirez were inside appellant’s apartment
when the officers arrived at the scene. York was appellant’s girlfriend and lived with him. York
was not at the apartment when the incident occurred. Sergeant Shannon said that Herrera, Mary,
and Fidencio did not have any injuries to their hands. They told him that they did not know
anything about a fight. Sergeant Shannon said that a child was asleep upstairs in the apartment.
Appellant and Pierson went inside appellant’s apartment. Officer Grusendorf talked with
Holland. Officer Grusendorf smelled an odor of alcohol on Holland. Officer Grusendorf said
that Holland’s demeanor was pretty calm and that Holland appeared to be “punch drunk.”
Holland was not worried about himself but was instead worried about Tomlinson. Officer
Grusendorf believed that Holland might have been struck in his face because he had a mark on it.
Officer Grusendorf thought that Holland and Tomlinson might have fought each other.
Officer Grusendorf asked Holland what happened. Holland told him that Tomlinson was his
boss. Holland said that he and Tomlinson came to apartment 1002 to visit a man who owed
Tomlinson money. Holland said that appellant punched him (Holland) in the face and that he
fell back as a result of being hit. Holland said that he then saw appellant punch Tomlinson in the
head. Holland also told Officer Grusendorf that “[w]e got jumped by this one.”
Officer Grusendorf testified that, the more Holland talked, the more disoriented he became.
After Officer Grusendorf spoke with Holland, Officer Self and Sergeant Shannon brought
appellant and Pierson out of appellant’s apartment. Officer Grusendorf asked Holland whether
4
appellant or Pierson, or both of them, assaulted him. Holland identified appellant as the person
who assaulted Tomlinson and him. Holland also said that appellant acted alone and that Pierson
was not involved in the assaults. Based in part on the lack of any marks on appellant’s hands,
Sergeant Shannon did not believe that there was enough evidence to arrest appellant at that time.
The police discovered that Holland had two outstanding traffic warrants. Officer Self
arrested Holland on the warrants and took him to jail. Officer Self testified that Holland was
curious about whether he would be able to get out of jail that night. At the jail, some marihuana
fell to the ground from Holland’s possession, and Holland was charged with possession of
marihuana.
Paramedics were dispatched to the scene. Paramedic Alvin Stewart attended to
Tomlinson. Stewart’s initial contact with Tomlinson was at 8:10 p.m. Stewart said that there was
a puddle of vomit on the ground near Tomlinson. Tomlinson responded to Stewart with
gibberish. Stewart testified that Tomlinson was in and out of consciousness and that Tomlinson
had a laceration on the back of his head. Tomlinson was transported to the emergency room at
Brownwood Regional Medical Center.
Tara Holland was Holland’s wife. Tara testified that Holland worked on an oil rig and
that Tomlinson was his boss. Cell phone records that were introduced into evidence showed that
there were a number of calls between Tara and Holland on the night of the incident.
Specifically, the calls were made at 6:24 p.m., 6:29 p.m., 7:19 p.m., 7:41 p.m., and 7:54 p.m.
Tara testified about the calls. She said that, during the 6:24 p.m. call, Holland told her that he
was going to appellant’s apartment with Tomlinson so that he would not get hurt. Tara testified
that appellant owed Tomlinson $80 and that Holland did not want Tomlinson to go to appellant’s
apartment by himself. During the 6:29 p.m. call, Holland told Tara that they were pulling up to
appellant’s apartment. Holland also told her that he and Tomlinson had received a call from
appellant and that appellant said that he had the $80. Tara said that Holland did not answer when
she called him at 7:19 p.m. She said that, at 7:41 p.m., Holland called her and told her that he
and Tomlinson had been beaten and were hurt. Holland asked her to come and get them. During
the 7:54 p.m. call, Holland told Tara that he was lying on top of Tomlinson and that Tomlinson
was hurt. Tara testified that, during the 7:54 p.m. call, she heard appellant talking in the
background and heard Holland tell appellant, “You just f---ed up.”
5
Tara went to the apartment complex. She saw Holland in the backseat of a police car.
Tara said that Holland’s face was bleeding. Tomlinson was lying in the parking lot. He was not
moving, and there was a lot of blood around him. Tara said that the officers took Holland out of
the police car and that he pointed to appellant. Tara left the scene after Tomlinson was put in the
ambulance.
Holland’s condition deteriorated at the jail. He had a seizure. Paramedic Stewart went to
the jail to transport Holland to the emergency room at Brownwood Regional Medical Center.
Stewart’s initial contact with Holland at the jail was at 12:16 a.m. Stewart testified that Holland
had a knot on the top of his head. Stewart said that Holland was totally unresponsive and that his
breathing became distressed on the way to the hospital. Holland was intubated at the hospital.
Officer Grusendorf went to the hospital to see Holland. Officer Grusendorf said that, at that
time, Holland was “a totally different person.” Officer Grusendorf said that Holland was on a
ventilator and had slipped into a comatose state. Later, Holland was taken by helicopter to
Baylor University Medical Center in Dallas, where he passed away the next night.
After seeing Holland at the hospital, Officer Grusendorf went to appellant’s apartment
and talked with appellant. Appellant initially falsely identified himself to Officer Grusendorf as
Jamar “Warren.” Officer Grusendorf then obtained a social security number from appellant and
learned his true identity. Appellant had three outstanding warrants, and Officer Grusendorf took
him into custody.
Brownwood Police Detective Robert Mullins went to the apartment complex the morning
after the incident. He searched the area around appellant’s apartment and also looked in the
dumpsters near the apartment. He did not find any weapons or anything indicating that an
assault had taken place. Detective Mullins did not see any broken bottles, beer bottles, or beer
cans in the area around appellant’s apartment. He also did not see any damage or stains on
appellant’s apartment door. Later that day, Detective Mullins spoke with appellant.
Detective Mullins gave appellant his Miranda1 warnings. Appellant indicated that he understood
the warnings, and he signed a waiver of his rights. Appellant told Detective Mullins that he did
not understand why he was in jail because he had not done anything wrong. Appellant told
Detective Mullins that he did not know Holland and Tomlinson.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
6
Detective Mullins met with Pierson, Herrera, Mary, and Fidencio. They were inside
appellant’s apartment when the incident occurred. Detective Mullins said that their stories were
somewhat consistent. They said that they did not know anything about a fight. They also said
that they were told someone was lying down in the parking lot. Detective Mullins also spoke
with Tomlinson’s wife, Candice Tomlinson. Candice told him that Tomlinson went to
appellant’s apartment in an attempt to collect money. Detective Mullins spoke with Tomlinson
on March 11, 2008. Tomlinson had no recollection of the incident. Detective Mullins also met
with Holland’s wife, Tara. Detective Mullins said that he and Tara discussed the phone calls that
had taken place between Holland and her on the night of the incident.
Detective Mullins testified that Tomlinson’s medical records from the hospital for the
date of the incident showed that he had a blood alcohol level of .169. Detective Mullins said that
Tomlinson was obviously intoxicated at that time.
Pierson testified that he and his girlfriend, Herrera, sometimes visited appellant at his
apartment. Pierson said that he did not know Holland or Tomlinson. Pierson said that, on the
date of the incident, he, Herrera, Fidencio, Mary, appellant, and appellant’s son were at the
apartment. Pierson said that, at about 8:00 p.m., the people inside appellant’s apartment “heard
something thrown at the door” that sounded like a hard knock. Pierson said that appellant was
upstairs taking care of his son. According to Pierson, appellant said, “Well, it’s a beer bottle
getting thrown at the door.” Pierson testified that appellant went outside and shut the door
behind him. About five or ten minutes later, appellant came back inside and told Pierson “to go
outside to help pick this guy up.” Pierson said that a man was lying down in a handicap parking
spot with a pool of blood around his head. Pierson testified that he and appellant tried to put the
man inside his truck and that the man threw up when they picked him up. Pierson said that he
did not ask appellant what had happened to the man. Pierson said that he did not hear fighting or
yelling when appellant went outside.
Pierson testified that police officers arrived at the scene when he was helping appellant
pick up the man. The police had a man in a police car. Pierson said that the police got the man
out of the car and had the man look at appellant and him. Pierson said that the man pointed at
appellant and that the man told the police he (Pierson) did not have anything to do with it.
Pierson testified that he and appellant went inside appellant’s apartment after the police left and
that they did not talk about what had happened.
7
Herrera was in appellant’s apartment when the incident occurred. She said that she heard
what sounded like a glass bottle hitting the door. She also said that it sounded like someone had
tossed it “lightly.” Appellant went outside to see about the noise. Herrera said that, about five
minutes later, appellant came back inside and went upstairs. Herrera said that appellant went
back outside. Herrera said that she did not hear anything coming from outside when appellant
was outside. About ten minutes later, appellant came inside and told Pierson to go outside to
help pick up somebody. Herrera said that the police officers came into the apartment. Herrera
said that, upon the officers’ request, she, Fidencio, and Mary showed the officers their hands.
Herrera testified that she did not know what happened outside the apartment. After the officers
left, appellant and Pierson did not say anything about what had happened. Herrera said that she
never asked appellant what had happened. Herrera testified that appellant did not look like he
had been in a fight. Herrera did not see any evidence that a fight had taken place. She did not
see a bottle or any broken glass. Herrera said that the police later came back to the apartment
and arrested appellant.
Fidencio testified that he and appellant were friends. Fidencio said that he and his wife,
Mary, were sitting on the couch in appellant’s apartment when they heard a bottle hit the door.
He said that appellant went to the door. Fidencio testified that appellant went outside for about
twenty seconds. Fidencio said that he did not hear any kind of disturbance going on in the
parking lot. He said that appellant did not tell Pierson to come outside. Fidencio said that the
police came inside the apartment and looked at everybody’s hands. He also said that, after the
police left, the people inside the apartment did not talk about what had happened.
Tomlinson testified that he previously worked on a pulling unit in the oil field business.
He said that he met appellant about three weeks before the incident. He said that appellant asked
him for a job on one occasion but that he did not have any available work at that time.
Tomlinson said that he cannot recall anything that happened for about two weeks leading up to
the incident and that he does not remember the incident. About three weeks after the incident, he
realized that something had happened to him. He said that he sustained shattered bones in the
left side of his face during the incident. After the incident, he had a subdural hematoma.
Candice testified that, about a week or two before the incident, appellant came to her
house and told Tomlinson that he needed more time to pay back the money. After the incident,
Brandy Smith, who was Tara’s sister, told Candice that Tomlinson had been injured. Candice
8
went to the hospital. She said that it looked like Tomlinson had been “beaten to a pulp.”
Tomlinson was taken by helicopter to Hendrick Medical Center in Abilene. Candice said that
Tomlinson did not remember the incident.
Pablo testified that he and appellant were neighbors for about six months. Pablo testified
that Kristi called him and said that people were fighting outside the apartments. After receiving
Kristi’s call, Pablo went to his and Kristi’s apartment. The police officers left the scene before
Pablo arrived at the apartments. Pablo testified that appellant was standing at his doorstep and
looked worried. Appellant called Pablo over to him. Pablo said that appellant told him what had
happened. According to appellant, a couple of guys came to his apartment and asked him for a
beer. Appellant said that the two guys ended up with a beer and threw it at his door. Appellant
also told Pablo that the men made gestures at him and called him names. Pablo testified that he
saw a “beer splatter” on appellant’s door. Appellant told Pablo that “[h]e hit one time” and the
guy “went straight to the ground.” Pablo said that there was a big pool of blood on the street.
Appellant said that the men came toward him and that he reacted by hitting both of them with his
hand. Appellant told Pablo that he knocked one of the guys out with one punch. Pablo gave a
statement to the police. In his statement, Pablo said that appellant “started bragging about how
the police didn’t think it was him.”
Stephen Atkins lived at the Southside Village Apartments on the date of the incident. He
said that he was outside when the incident started. Atkins said that he saw a pickup pull up to
appellant’s apartment. He said that two guys got out of the pickup and then banged on
appellant’s door. According to Atkins, appellant answered the door and then an argument started
between appellant and the men. Atkins testified that he did not have a good view of the incident.
However, he said that one of the men “buckled up” like he wanted to have an altercation with
appellant. Atkins said that appellant pushed the man away. Atkins said that he then went inside
his apartment and told his wife, “I think they are going to fight out there.” Atkins said that he
did not see anything else after going inside his apartment.
Royce Gober testified that he was in jail in February 2008. Gober heard appellant tell
someone that, while he was at home watching his child, he heard a commotion outside.
Appellant said that he went outside and saw one man on the ground and another man walking
away. Appellant said that he tried to pick up the man from the ground. Appellant also told the
individual that he did not have anything to do with the fight.
9
Brandon Clark was a jailer at the Brown County Jail. Appellant was in jail on June 18,
2008. Clark testified that there was an incident involving appellant on that date. Appellant was
upset about the television in his cell being turned off. Clark testified that he listened to a
conversation between appellant and another inmate on the intercom. Clark testified that
appellant told the other inmate that the officers “need[ed] to quit f---ing with him”; that “he had
done beat one person to death and he would do it again”; and that, “if the officers [did] not quit f-
--ing with him[,] he [would] f---ing show them.” Clark testified that appellant told the other
inmate that his hands were lethal weapons.
Pedro Delarosa and appellant had been cellmates in jail. Delarosa had known appellant
before they were in jail together. He also had known Holland and Tomlinson. Delarosa testified
that appellant told him that appellant sold Tomlinson and Holland drugs and that they were
unhappy with the drugs. Appellant said that Tomlinson and Holland beat and kicked his
apartment door and threw beer bottles at it. Appellant told Delarosa that he, Tomlinson, and
Holland all threw blows. Appellant said that he hit Tomlinson and Holland in defense.
According to Delarosa, appellant said that he hit Holland and that Holland then ricocheted off a
vehicle, fell, and hit his head on a curb or parking block. According to Delarosa, appellant also
said that he hit Tomlinson and that Tomlinson then became dazed and took off. Apparently,
Delarosa referred to Holland as Tomlinson and Tomlinson as Holland by mistake because the
evidence showed that Tomlinson was lying facedown in the parking lot and that Holland walked
away after the altercation.
The State presented detailed medical evidence about Holland’s and Tomlinson’s injuries.
Michael Lyons, M.D. treated Tomlinson in the emergency room at the Brownwood Regional
Medical Center. Tomlinson was uncooperative and unable to provide any coherent information.
He had bruising around both eyes and a laceration on his head. A CAT scan showed that
Tomlinson had a subdural hematoma times two. He had fractured bones on the left side of his
face. He was transferred to Hendrick Medical Center. Dr. Lyons also treated Holland. Holland
was brought to the emergency room with a complaint of seizures. Dr. Lyons said that Holland
was unresponsive and stopped breathing. Holland was intubated. Dr. Lyons said that Holland
had a fairly large epidural hematoma on the right side of his brain and that he had a right to left
shift of the brain. Dr. Lyons said that Tomlinson had a blood alcohol level of about .13 and that
Holland had a blood alcohol level of about .01.
10
Dr. Janis Townsend-Parchman testified that she was a medical examiner for Dallas
County. She performed an autopsy on Holland. She described in detail Holland’s head injuries.
She said that he had injuries that were consistent with having received three separate blows to the
head. Dr. Townsend-Parchman testified that Holland died as a result of blunt force head injuries.
She said that blunt force injuries can be caused when an individual gets hit with a blunt
instrument or when an individual hits a blunt instrument. Dr. Townsend-Parchman explained
that, if someone gets into a scuffle and gets pushed down, the ground can serve as a blunt
instrument. She testified that the blunt force head injuries that caused Holland’s death could
have been caused by him falling and hitting the ground or by him being struck in the head with a
relatively broad object, such as a fist. She said that there is no way to determine whether those
injuries were caused by a fall or from an object striking his head.
Dr. Lee Ann Grossberg testified as a defense expert. She was a forensic pathologist.
Dr. Grossberg testified in detail about Tomlinson’s and Holland’s injuries. She said that the
injury to the right side of Tomlinson’s head was his most serious injury and was most consistent
with a fall. Dr. Grossberg also said that the most likely cause of the injury to the right side of
Holland’s head was a fall to a very hard surface.
The State called Raymond Aaron Laviolette to testify about an extraneous assault.
Laviolette testified that he and appellant had been neighbors at the Driftwood Apartments in
2007. Laviolette testified about an incident that involved appellant and a man named “Mike.”
Laviolette did not know Mike’s last name. The incident occurred during the summer of 2007.
Laviolette said that he and others were playing volleyball and drinking beer outside at the
Driftwood Apartments. Mike left one of the apartments and walked away with his bike.
Laviolette said that somebody “popped off” about the way Mike was dressed. Mike responded
that he knew karate. When Mike got to the end of the street, he yelled something. Appellant
asked the group drinking and playing volleyball whether they wanted him to hit Mike.
Laviolette testified that everybody responded, “Yeah, go hit him.” Laviolette testified that
appellant went to Mike and “smacked him.” Laviolette said that appellant hit Mike hard in the
mouth and that Mike went down to the ground. Laviolette said that appellant’s knuckle was
“busted open” after he hit Mike.
11
Confrontation Clause and Hearsay Issues
In his first three points of error, appellant argues that the trial court erred in admitting
Officer Grusendorf’s testimony as to the statements Holland made to him about the altercation
involving appellant, Holland, and Tomlinson. Specifically, in his first point, appellant complains
that Officer Grusendorf’s testimony violated his rights under the Confrontation Clause. In his
second point, appellant contends that the State failed to meet its burden to show that the
testimony was admissible under the Confrontation Clause. In his third point, appellant contends
that Officer Grusendorf’s testimony was inadmissible hearsay.
At trial, appellant objected to Officer Grusendorf’s testimony about Holland’s statements
on Confrontation Clause and hearsay grounds. The State argued that the Confrontation Clause
did not bar Officer Grusendorf’s testimony for two reasons. First, the State argued that
Holland’s statements were “akin to dying declarations.” Second, the State argued that appellant
had waived his right to confront Holland based on the doctrine of forfeiture by wrongdoing. The
trial court found that the State met its burden of showing that appellant had forfeited by
wrongdoing his right to confront Holland and that, therefore, the Confrontation Clause did not
bar Officer Grusendorf’s testimony. The trial court also found that Holland’s statements were
not dying declarations. With respect to appellant’s hearsay objections, the trial court found that
Holland’s statements satisfied multiple hearsay exceptions. Therefore, the trial court admitted
Officer Grusendorf’s testimony.
Generally, we review a trial court’s decision to admit evidence under an abuse of
discretion standard. Wall v. State, 184 S.W.3d 730, 743 (Tex. Crim. App. 2006); Angleton v.
State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998). However, in reviewing a Confrontation
Clause objection, we review the constitutional ruling de novo. Wall, 184 S.W.3d at 742-43.
The Confrontation Clause of the Sixth Amendment provides a right in both federal and
state prosecutions to confront and cross-examine adverse witnesses. U.S. CONST. amends. VI,
XIV; Pointer v. Texas, 380 U.S. 400, 406 (1965); Woodall v. State, 336 S.W.3d 634, 641 (Tex.
Crim. App. 2011). The principal concern of the Confrontation Clause is to ensure the reliability
of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of
an adversary proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845 (1990).
Whether a statement is admissible under the rules of evidence and whether that same statement is
admissible under the Confrontation Clause are separate questions. Crawford v. Washington, 541
12
U.S. 36, 50-51 (2004); Wall, 184 S.W.3d at 734-35. Thus, even when a statement offered
against a defendant is admissible under evidentiary rules, the statement may implicate the Sixth
Amendment’s Confrontation Clause. Gonzalez v. State, 195 S.W.3d 114, 116 (Tex. Crim. App,
2006); Clark v. State, 282 S.W.3d 924, 930 (Tex. App.—Beaumont 2009, pet. ref’d).
The Confrontation Clause bars the admission of out-of-court testimonial statements of a
witness unless the witness is unavailable to testify and the defendant had a prior opportunity to
cross-examine the witness. Crawford, 541 U.S. at 53-54; Wells v. State, 241 S.W.3d 172, 174-
175 (Tex. App.—Eastland 2007, pet. ref’d). Post-Crawford, the threshold question in any
Confrontation Clause analysis is whether the statements at issue are testimonial or
nontestimonial in nature. Campos v. State, 256 S.W.3d 757, 761 (Tex. App.—Houston [14
Dist.] 2008, pet. ref’d); Wells, 241 S.W.3d at 175. Generally, a 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.
Davis v. Washington, 547 U.S. 813, 822-23 (2006); De La Paz v. State, 273 S.W.3d 671, 680
(Tex. Crim. App. 2008). In such circumstances, the person offering information is literally
bearing testimony. De La Paz, 273 S.W.3d at 680. In the context of police inquiries, out-of-
court statements made to police are not considered testimonial if they are made to enable police
assistance to meet an ongoing emergency. However, they are considered testimonial if there is
no such ongoing emergency, and the primary purpose of the police interrogation is to establish or
prove past events potentially relevant to later criminal prosecution. Davis, 547 U.S. at 822;
Langham v. State, 305 S.W.3d 568, 576 (Tex. Crim. App. 2010); Vinson v. State, 252 S.W.3d
336, 338 (Tex. Crim. App. 2008).
According to Officer Grusendorf, Holland said that he and Tomlinson went to apartment
1002 to visit a man who owed Tomlinson money, that appellant punched him in the face, that
appellant punched Tomlinson in the head, and that he and Tomlinson “got jumped” by appellant.
At trial, the State did not assert, and the trial court did not conclude, that Holland’s statements to
Officer Grusendorf were nontestimonial. The evidence shows that no ongoing emergency
existed when Holland made the statements to Officer Grusendorf. Instead, the statements were
made to establish or prove past events potentially relevant to a later criminal prosecution. As
such, Holland’s statements were testimonial in nature. Davis, 547 U.S. at 822.
13
The United States Supreme Court has recognized two common-law exceptions to a
defendant’s right of confrontation: dying declarations and forfeiture by wrongdoing. Giles v.
California, 554 U.S. 353, 358-59 (2008). In this case, the State argues that appellant forfeited
his constitutional right to confront Holland by killing him. The rule of forfeiture by wrongdoing
extinguishes confrontation claims on equitable grounds. Davis, 547 U.S. at 833; Crawford, 541
U.S. at 62. Forfeiture by wrongdoing is a common-law rule that permits the introduction of
statements of a witness who is detained or kept away from trial by the means or procurement of
the defendant. Giles, 554 U.S. at 359. Under the rule of forfeiture by wrongdoing, a defendant
forfeits the right to confront a witness if he engages in wrongful conduct that is designed to
prevent the witness from testifying. Id. at 360. A defendant does not forfeit the right of
confrontation by merely engaging in conduct that causes the witness to be absent. Rather, to
establish a forfeiture of the right, it must be shown that the defendant engaged in wrongful
conduct specifically for the purpose of preventing the witness from testifying. Id. at 361; Davis
v. State, 268 S.W.3d 683, 706 (Tex. App.—Fort Worth 2008, pet. ref’d).
The State presented evidence that appellant killed Holland. However, there is no
evidence that appellant killed Holland to prevent him from testifying. To the contrary, the
evidence shows that appellant allowed Holland to walk away after the altercation. Holland’s
injuries did not appear to be life-threatening when the officers arrived at the scene, when he
talked to the officers at the scene, or when he was taken to jail. The record does not support a
finding that appellant killed Holland with the intent to prevent him from testifying. Therefore,
the trial court erred by ruling that appellant forfeited his right to confront Holland and by
admitting evidence of Holland’s statements.
We note that the trial court correctly found that Holland’s statements to
Officer Grusendorf did not fall within the dying declarations exception to the right of
confrontation. The dying declarations exception has historically applied to “declarations made
by a speaker who was both on the brink of death and aware that he was dying.” Giles, 554 U.S.
at 358. At the scene, neither the officers nor Holland believed that he had serious injuries. The
evidence belies the contention that he was aware he was dying when he made the statements to
Officer Grusendorf.
Error in admitting evidence in violation of the Confrontation Clause is constitutional
error and, therefore, subject to a harm analysis under Rule 44.2(a) of the Texas Rules of
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Appellate Procedure. TEX. R. APP. P. 44.2(a); Langham, 305 S.W.3d at 582. Under Rule 44.2(a),
we must reverse a judgment of conviction unless we determine beyond a reasonable doubt that
the error did not contribute to the conviction. Rule 44.2(a). The following factors are relevant to
determining whether constitutional error under Crawford may be declared harmless beyond a
reasonable doubt: (1) the importance of the out-of-court statement to the State’s case;
(2) whether the statement was cumulative of other evidence; (3) the presence or absence of
evidence corroborating or contradicting the statement on material points; and (4) the overall
strength of the State’s case. Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007); Davis
v. State, 203 S.W.3d 845, 852 (Tex. Crim. App. 2006); Wells, 241 S.W.3d at 177.
The emphasis of a harm analysis under Rule 44.2(a) should not be on the propriety of the
outcome of trial. Scott, 227 S.W.3d at 690. Rather, we must determine whether the error
adversely affected the integrity of the process leading to the conviction. Id. The question for the
reviewing court is not whether the jury verdict was supported by the evidence. Id. Instead, the
question is the likelihood that the constitutional error was actually a contributing factor in the
jury’s deliberations in arriving at the verdict. Id. In performing a harm analysis, a reviewing
court may also consider the source and nature of the error, the amount of emphasis by the State
on the erroneously admitted evidence, and the weight the jury may have given the erroneously
admitted evidence compared to the balance of the evidence with respect to the element or
defensive issue to which it is relevant. Id.
With the above considerations in mind, we must determine whether there is a reasonable
possibility that the Crawford error moved the jury from a state of non-persuasion to one of
persuasion on a particular issue. Scott, 227 S.W.3d at 690; Davis, 203 S.W.3d at 852-53.
Ultimately, if we are to affirm, we must be satisfied beyond a reasonable doubt, after considering
the various factors, that the error did not contribute to the conviction. Scott, 227 S.W.3d at 690-
91.
Holland’s statements were important to the State’s case because they provided evidence
that appellant was involved in an altercation with Tomlinson and him, that appellant was the
aggressor, and that appellant assaulted both of them. Holland’s statements contradicted
appellant’s claims to the police that he was not involved in an altercation and that Holland and
Tomlinson fought each other. However, Holland’s statements were cumulative of, and
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corroborated by, other testimonial evidence and were consistent with physical evidence showing
that he and Tomlinson had been assaulted.
Kristi heard a loud argument going on between appellant and Holland, and she saw
Tomlinson lying on the ground. She also heard appellant tell Holland that Tomlinson had never
been hit that hard before. On the night of the altercation, appellant told Pablo that he hit both
Holland and Tomlinson. Appellant also told his cellmate, Delarosa, that he hit Holland and
Tomlinson. Clark, the jailer, heard appellant tell another inmate that he had beaten one person to
death and that he would do it again. Pierson testified that appellant went outside his apartment
and then, about five or ten minutes later, asked him to help pick up Tomlinson. Herrera gave
similar testimony. Appellant called Atkins as a witness. Atkins testified that appellant got into
an argument with Holland and Tomlinson. This evidence is cumulative of, and corroborates,
Holland’s statements that appellant assaulted Tomlinson and him. The injuries sustained by
Holland and Tomlinson were consistent with both of them being hit in the head. Witnesses
described the injuries in detail, and the State also introduced medical records into evidence that
established the nature of those injuries. Viewing all the evidence, including appellant’s
admissions that he hit Holland and Tomlinson, we conclude that the State presented a strong case
of appellant’s guilt.
Although appellant told the police that he was not involved in an altercation, he claimed
at trial that he was acting in self-defense when he hit Holland and Tomlinson. Holland’s
statements, if believed, established that appellant was the aggressor in the altercation.
Appellant relied on other testimony in an attempt to establish that Holland and Tomlinson
were the aggressors. According to Pablo, appellant told him that Holland and Tomlinson came
toward him and that he reacted by hitting both of them. According to Delarosa, appellant told
him that he hit Holland and Tomlinson in defense. Atkins said that one of the men “buckled up”
as if he wanted to fight appellant. Pierson testified that something was thrown at appellant’s
apartment door. Herrera and Fidencio testified that they heard what sounded like a bottle hit
appellant’s apartment door. While this testimony, if believed, might provide some support for
appellant’s claim that he acted in self-defense, the State presented evidence, as detailed above,
corroborating Holland’s statements and establishing the nature of Holland’s and Tomlinson’s
injuries. Because Holland’s statements were cumulative of, and corroborated by, other evidence,
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we conclude that the evidence of Holland’s statements would not have materially affected the
jury’s deliberations on appellant’s self-defense issues.
After carefully reviewing the record, we conclude beyond a reasonable doubt that the
error in admitting Holland’s statements did not contribute to appellant’s conviction or
punishment. Therefore, the error was harmless. Appellant’s first two points of error are
overruled.
Based on our ruling on appellant’s first two points of error, we need not decide whether
Officer Grusendorf’s testimony as to Holland’s statements was also inadmissible as hearsay. A
violation of the evidentiary rules resulting in the erroneous admission of evidence is
nonconstitutional error and is, therefore, subject to a harm analysis under Rule 44.2(b).
Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Gately v. State, 321 S.W.3d 72, 77
(Tex. App.—Eastland 2010, no pet.). Under Rule 44.2(b), we are to disregard any error unless it
affected the defendant’s substantial rights. We have concluded that the trial court’s error in
admitting Holland’s statements was harmless under the more stringent standard imposed by
Rule 44.2(a) for analyzing harm of constitutional errors. Therefore, even assuming that
Holland’s statements were also inadmissible hearsay under the Rules of Evidence, we need not
conduct a separate harm analysis under the less stringent standard imposed by Rule 44.2(b) for
analyzing harm of nonconstitutional errors. Guidry v. State, 9 S.W.3d 133, 151 n.14 (Tex. Crim.
App. 1999). Appellant’s third point of error is overruled.
Evidence of Extraneous Assault
Appellant argues in his fifth and sixth points of error that the trial court erred by
admitting evidence of the assault that he allegedly committed against “Mike.” In his fifth point,
appellant contends that evidence of the extraneous assault was inadmissible under Rule 404 of
the Rules of Evidence. See TEX. R. EVID. 404. In his sixth point, appellant contends that
evidence of the extraneous assault was inadmissible under Rule 403 of the Rules of Evidence
because the probative value of the evidence was substantially outweighed by the danger of unfair
prejudice. See TEX. R. EVID. 403.
As stated above, we review a trial court’s decision to admit evidence under an abuse of
discretion standard. Wall, 184 S.W.3d at 743; Angleton, 971 S.W.2d at 67. A defendant’s prior
crimes or bad acts are generally inadmissible to prove that he has a bad character or a propensity
to commit the offense charged. Robinson v. State, 844 S.W.2d 925, 928 (Tex. App.—Houston
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[1st Dist.] 1992, no pet.). Such evidence, however, may be admissible for other purposes, such
as proof of motive, intent, plan, knowledge, or lack of mistake or accident. Rule 404(b). The
“other purposes” listed in Rule 404(b) are not exclusive or exhaustive but are merely
representative. Robinson, 844 S.W.2d at 929. When an accused raises a self-defense theory, the
State may introduce evidence of prior violent acts where the accused was an aggressor in order to
show his intent and to rebut the defense. Halliburton v. State, 528 S.W.2d 216, 218 (Tex. Crim.
App. 1975); Jones v. State, 241 S.W.3d 666, 669 (Tex. App.—Texarkana 2007, no pet.);
Robinson, 844 S.W.2d at 929.
Appellant’s counsel asserted during opening statement that appellant had acted in self-
defense. Appellant attempted to establish that Holland and Tomlinson were the aggressors in the
altercation and that he was merely defending himself. The State called Laviolette as a rebuttal
witness. He testified about appellant’s prior assault of “Mike.” Evidence of appellant’s assault
of Mike was admissible under Rule 404(b) to show appellant’s intent and to rebut his theory of
self-defense. Jones, 241 S.W.3d at 669-70; Robinson, 844 S.W.2d at 929. Appellant’s fifth
point of error is overruled.
Under Rule 403, relevant evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Rule 403 favors admission of relevant evidence
and carries a presumption that relevant evidence will be more probative than prejudicial.
Hayes v. State, 85 S.W.3d 809, 815 (Tex. Crim. App. 2002). Evidence is unfairly prejudicial
when it has an undue tendency to suggest an improper basis for reaching a decision. Reese v.
State, 33 S.W.3d 238, 240 (Tex. Crim. App. 2000). A Rule 403 analysis by the trial court should
include, but is not limited to, the following considerations: (1) the probative value of the
evidence; (2) the potential of the evidence to impress the jury in some irrational, indelible way;
(3) the time the proponent needs to develop the evidence; and (4) the proponent’s need for the
evidence. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). In evaluating a trial
court’s determination under Rule 403, a reviewing court is to reverse the trial court’s judgment
“rarely and only after a clear abuse of discretion.” Mozon v. State, 991 S.W.2d 841, 847 (Tex.
Crim. App. 1999).
In this case, the extraneous assault is similar to the charged offenses. Laviolette testified
that appellant took “Mike” to the ground with one punch to the mouth. If believed, Laviolette’s
testimony showed that appellant acted as an aggressor and violently assaulted “Mike.” The
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extraneous assault occurred only about six months before appellant’s altercation with Holland
and Tomlinson. Evidence of appellant’s prior assault of “Mike” had high probative value on the
issue of whether appellant was the aggressor in his altercation with Holland and Tomlinson. The
trial court gave the jury an appropriate limiting instruction under Rule 404(b) before Laviolette
testified about the extraneous assault. The trial court also included appropriate extraneous
offense instructions in the charge. The limiting instructions given by the trial court likely
eliminated any potential that the extraneous offense evidence would impress the jury in some
irrational, indelible way. Laviolette’s testimony did not take a significant amount of time. The
State needed to present the evidence to rebut appellant’s claim of self-defense. After balancing
the Rule 403 factors, we conclude that the trial court could have reasonably determined that the
probative value of the evidence of the extraneous assault was not substantially outweighed by the
danger of unfair prejudice. The trial court did not abuse its discretion by admitting the evidence.
Appellant’s sixth point of error is overruled.
Appellant’s Requested Jury Instructions on Self-Defense
Appellant contends in his seventh and eighth points of error that the trial court erred by
denying his requests for jury instructions (1) that a person’s belief that the use of force against
another is immediately necessary is presumed to be reasonable if the person knew or had reason
to believe that the other person was attempting to commit robbery or aggravated robbery and
(2) that a person’s belief that the use of deadly force against another is immediately necessary is
presumed to be reasonable if the person knew or had reason to believe that the other person was
attempting to commit robbery or aggravated robbery.
A trial court must charge the jury fully and affirmatively on the law applicable to every
issue raised by the evidence. TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon 2007). If
evidence from any source raises a defensive theory, it must be included in the court’s charge.
Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001); Taylor v. State, 856 S.W.2d 459,
470-71 (Tex. App.—Houston [1st Dist.] 1993), aff’d, 885 S.W.2d 154 (Tex. Crim. App. 1994).
A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence
regardless of whether that evidence is strong, weak, unimpeached, or contradicted and regardless
of what the trial court may think about the credibility of the defense. Walters v. State, 247
S.W.3d 204, 209 (Tex. Crim. App. 2007); Ferrel, 55 S.W.3d at 591. However, if the evidence,
19
viewed in the light most favorable to the defendant, does not establish self-defense, the defendant
is not entitled to an instruction on the issue. Ferrel, 55 S.W.3d at 591.
The trial court submitted numerous self-defense instructions to the jury. The trial court
instructed the jury, “Upon the law of self-defense, you are instructed that a person is justified in
using force against another when and to the degree that the actor reasonably believes the force is
immediately necessary to protect the actor against the other’s use or attempted use of unlawful
force.” See TEX. PENAL CODE ANN. § 9.31(a) (Vernon 2011). The trial court also instructed the
jury that such a belief is presumed to be reasonable “if the actor knew or had reason to believe
that the person against whom the force was used unlawfully and with force attempted to enter the
actor’s occupied habitation and the actor did not provoke the person. . . .and was not otherwise
engaged in criminal activity at the time the force was used.” Id. § 9.31(a)(1)(A). The trial court
submitted similar instructions with respect to a person’s use of deadly force in self-defense. Id.
§ 9.32(a)(1), (a)(2)(A), (b)(1)(A).
Appellant complains about the trial court’s refusal to include instructions that a person’s
belief that the use of force and deadly force is immediately necessary is presumed to be
reasonable if the person knew or had reason to believe that the person against whom the force
was used was committing or attempting to commit robbery or aggravated robbery. See Section
9.31(a)(1)(C) and Section 9.32(b)(1)(C). A person commits aggravated robbery when he
commits robbery and he causes serious bodily injury to another or uses or exhibits a deadly
weapon. TEX. PENAL CODE ANN. § 29.03(a)(1), (2) (Vernon 2011). A person commits robbery
if, in the course of committing theft and with intent to obtain or maintain control of the property,
he intentionally, knowingly, or recklessly causes bodily injury to another or intentionally or
knowingly threatens or places another in fear of imminent bodily injury or death. Id.
§ 29.02(a)(1), (2). A person commits theft if he unlawfully appropriates property with the intent
to deprive the owner of the property. Id. § 31.03(a).
We have summarized the evidence above. There was no evidence that Holland and
Tomlinson were committing or attempting to commit robbery or aggravated robbery against
appellant. Likewise, the record lacks evidentiary support for the contention that appellant knew
or had reason to believe that Holland and Tomlinson were committing or attempting to commit
robbery or aggravated robbery. Based on the evidence, appellant could not have formed a
reasonable belief that Holland and Tomlinson were engaging in such conduct. Because the
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evidence did not raise the issues presented by appellant’s requested “robbery” and “aggravated
robbery” instructions, the trial court did not err by refusing to submit those instructions to the
jury. Ferrel, 55 S.W.3d at 591; Preston v. State, 756 S.W.2d 22, 25 (Tex. App.—Houston [14th
Dist.] 1988, pet. ref’d). Appellant’s seventh and eighth points of error are overruled.
Trial Court’s Instruction on Concurrent Sentences
In his ninth point of error, appellant contends that the trial court erred by informing the
jury during punishment deliberations that his sentences would run concurrently. While
deliberating appellant’s punishment, the jury sent the trial court a note asking “will or can” the
two sentences run concurrently. Over appellant’s objection, the trial court responded to the
jury’s question as follows:
Under the law, the court is required to run the sentences concurrently since
the two cases were tried together. I refer you to the court’s charge for all of the
instructions you are to follow.
Except under certain circumstances, if an accused has been found guilty of more than one
offense, the offenses arose out of the same criminal episode, and the offenses were prosecuted in
a single criminal action, the sentences assessed for the offenses must run concurrently. TEX.
PENAL CODE ANN. § 3.03(a) (Vernon 2011). Those certain circumstances do not apply here.
Thus, the trial court was required to order that appellant’s sentences for the subject manslaughter
and aggravated assault convictions run concurrently. In such cases, a trial court does not abuse
its discretion by informing the jury, in response to a question from the jury, that the sentences
will run concurrently. Haliburton v. State, 578 S.W.2d 726, 729 (Tex. Crim. App. [Panel Op.]
1979); Dickson v. State, 986 S.W.2d 799, 804 (Tex. App.—Waco 1999, pet. ref’d). Appellant’s
ninth point of error is overruled.
The Indictments
In his fourth point of error, appellant contends that the trial court erred by denying his
motion to quash the indictments because they failed to provide him fair notice of the manner and
means by which he allegedly committed the offenses. We review the denial of a motion to quash
de novo. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004); Jones v. State, 333
S.W.3d 615, 623 (Tex. App.—Dallas 2009, pet. ref’d). The right to notice is set forth in both the
United States and Texas Constitutions. U.S. CONST. amend. VI; TEX. CONST. art. I, § 10; Moff,
154 S.W.3d at 601; State v. Rodgers, 214 S.W.3d 644, 647 (Tex. App.—Eastland 2006, pet.
21
ref’d). A charging instrument must be specific enough to inform the accused of the nature of the
accusation against him so that he may prepare a defense. Moff, 154 S.W.3d at 601; Rodgers, 214
S.W.3d at 647.
Each of the subject indictments alleged that appellant committed a single offense. The
indictments alleged alternative manner and means of committing those offenses. As stated
above, the indictments alleged that appellant committed the offense of aggravated assault by
“intentionally, knowingly, or recklessly caus[ing] serious bodily injury to [Tomlinson] by hitting
him in the head with his hand, a metal object or unknown object, or by causing him to fall and hit
his head, or by kicking him” and that appellant committed the offense of murder by
“intentionally or knowingly caus[ing] the death of [Holland] by hitting him in the head with his
hand, a metal object or unknown object, or by causing him to fall and hit his head, or by kicking
him.” The State is allowed to anticipate variances of proof at trial by pleading alternative
manner and means in the indictment. Rosales v. State, 4 S.W.3d 228, 236 (Tex. Crim. App.
1999); Hammock v. State, 211 S.W.3d 874, 879 (Tex. App.—Texarkana 2006, no pet.); Price v.
State, 59 S.W.3d 297, 301 (Tex. App.—Fort Worth 2001, pet. ref’d). In these causes, the State
alleged alternative manner and means in clear and concise language. We conclude that the
indictments gave appellant sufficient notice of the charged offenses to allow him to prepare a
defense. Appellant’s fourth point of error is overruled.
This Court’s Ruling
The judgments of the trial court are affirmed.
TERRY McCALL
JUSTICE
August 18, 2011
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.
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