Joseph Tate Bailey v. State ( 2015 )

ACCEPTED
01-15-00215-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
11/11/2015 11:58:13 AM
CHRISTOPHER PRINE
No. 01-15-00215-CR CLERK
In the
Court of Appeals FILED IN
For the 1st COURT OF APPEALS
HOUSTON, TEXAS
First District of Texas
11/12/2015 8:16:13 AM
At Houston
CHRISTOPHER A. PRINE
Clerk

No. 1411201
In the 248th District Court
Of Harris County, Texas

JOSEPH BAILEY
Appellant
V.
THE STATE OF TEXAS
Appellee

STATE’S APPELLATE BRIEF

DEVON ANDERSON
District Attorney
Harris County, Texas
SARA SEELY
Assistant District Attorney
Harris County, Texas
GREG HOULTON
Assistant District Attorney
Harris County, Texas
JESSICA CAIRD
Assistant District Attorney
Harris County Criminal Justice Center
1201 Franklin, Suite 600
Houston, Texas 77002
Telephone: 713.274.5826
Fax Number: 713.755.5809
State Bar Number: 24000608
ORAL ARGUMENT NOT REQUESTED
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of
Appellate Procedure 39.1, the State does not believe oral argument is necessary to
resolve the issues on appeal.
IDENTIFICATION OF THE PARTIES
Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list
of the names of all interested parties is provided below.
Counsel for the State:
Devon Anderson  District Attorney of Harris County
Jessica Caird  Assistant District Attorney on appeal
Sarah Seely & Greg Houlton  Assistant District Attorneys at trial
Appellant or criminal defendant:
Joseph Bailey
Counsel for Appellant:
Lana Gordon  Counsel on appeal
Mike Trent  Counsel at trial
Trial Judge:
Honorable Katherine Cabaniss Judge Presiding
i
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ................................................i
IDENTIFICATION OF THE PARTIES ....................................................................i
TABLE OF CONTENTS .......................................................................................... ii
INDEX OF AUTHORITIES.....................................................................................vi
STATEMENT OF THE CASE .................................................................................. 1
STATEMENT OF FACTS ........................................................................................ 1
SUMMARY OF THE ARGUMENT ...................................................................... 21
REPLY TO APPELLANT’S FIRST POINT OF ERROR ...................................... 23
I. The standard of review and applicable law on sufficiency and
corroboration of accomplice testimony................................................... 23
II. The jury heard more than sufficient evidence to establish
appellant’s guilt apart from accomplice testimony ................................ 25
a. The text messages connected appellant to the crime .......................... 26
b. Rose Preece’s testimony connected appellant to the crime ................ 26
c. Stella Preece connected appellant directly to the murder ................... 28
d. The gas station surveillance photographs corroborated the
accomplice witness testimony and tended to connect appellant to
the crime .............................................................................................. 30
e. The firearms evidence tended to connect appellant to the crime ........ 30
f. Appellant fled after the murder and hid from police .......................... 31
g. Appellant’s motive to participate in the murder connected him ......... 32
ii
h. Considered as a whole, evidence outside of accomplice testimony
tended to connect appellant to the murder .......................................... 33
REPLY TO APPELLANT’S SECOND POINT OF ERROR ................................. 33
I. The standard of review and applicable law regarding charge error
and accomplice witness instructions ....................................................... 34
II. Stella was not an accomplice .................................................................. 36
a. Stella was not an accomplice under Texas Penal Code Section
7.02(b) ................................................................................................. 37
b. Stella was not an accomplice under Texas Penal Code Section
7.02(a)(2) ............................................................................................. 39
III. Egregious harm did not result .............................................................. 42
IV. The jury charge correctly instructed on accomplice-witness law
and applied the facts to the law ............................................................... 45
REPLY TO APPELLANT’S THIRD AND SIXTH POINTS OF ERROR ............ 47
I. The standard of review and applicable law .............................................. 48
II. The closing arguments ........................................................................... 48
a. Guilt Phase .......................................................................................... 48
b. Punishment Phase ................................................................................ 52
III. Appellant waived error to all of his guilt phase complaints ................. 53
IV. Most of the prosecutor’s guilty phase arguments were within the
scope of proper summation ..................................................................... 54
V. No harm resulted closing argument ....................................................... 56
a. Guilty Phase ........................................................................................ 56
iii
b. Punishment Phase ................................................................................ 57
REPLY TO APPELLANT’S FOURTH POINT OF ERROR ................................. 59
I. Testimony that appellant had been in prison ........................................... 60
II. The instruction and Ate’s testimony cured the error ............................ 60
REPLY TO APPELLANT’S FIFTH POINT OF ERROR...................................... 61
I. The record does not support appellant’s claims ...................................... 62
II. Appellant’s misplaces his reliance on Oprean v. State ......................... 63
REPLY TO APPELLANT’S SEVENTH POINT OF ERROR .............................. 65
I. The jury’s requests and the testimony read back ..................................... 65
II. The read back testimony was responsive to the jury’s question ........... 66
REPLY TO APPELLANT’S EIGHTH POINT OF ERROR .................................. 67
REPLY TO APPELLANT’S NINTH POINT OF ERROR .................................... 69
I. The standard of review and applicable law .............................................. 69
II. Trial Counsel did not perform deficiently and his actions did not
result in prejudice which undermined confidence in the outcome ....... 69
a. The jury charge was not erroneous ..................................................... 69
b. Trial counsel repeatedly objected to the gang evidence ..................... 70
REPLY TO APPELLANT’S TENTH POINT OF ERROR.................................... 71
I. Failure to request instruction to disregard waived error to Miller
complaint .................................................................................................. 71
II. The Vernon Brooks complaint was unpreserved .................................. 73
PRAYER .................................................................................................................. 74
iv
CERTIFICATE OF SERVICE ................................................................................ 75
CERTIFICATE OF COMPLIANCE ....................................................................... 76
v
INDEX OF AUTHORITIES
CASES
Abdnor v. State,
871 S.W.2d 726 (Tex.Crim.App. 1994) ...............................................................34
Aguirre-Mata v. State,
992 S.W.2d 495, (Tex.Crim.App. 1999) ..............................................................68
Alejandro v. State,
493 S.W.2d 230 (Tex.Crim.App. 1973) ...............................................................48
Almanza v. State,
686 S.W.2d 157 (Tex.Crim.App. 1984) ...............................................................34
Arana v. State,
1 S.W.3d 824 (Tex.App.—Houston
[14th Dist.] 1999, pet. ref’d) ................................................................................73
Barrios v. State,
283 S.W.3d 348 (Tex.Crim.App. 2009) ........................................................ 46, 47
Blake v. State,
971 S.W.2d 451 (Tex.Crim.App. 1998) ...............................................................35
Bonier v. State,
738 S.W.2d 726 (Tex.App.—Houston
[14th Dist.] 1989, no pet.) ....................................................................................48
Brown v. State,
870 S.W.2d 53 (Tex.Crim.App. 1994) .......................................................... 66, 67
Burks v. State,
876 S.W.2d 877 (Tex.Crim.App. 1994) ...............................................................31
Bustamante v. State,
48 S.W.3d 761 (Tex.Crim.App. 2001) .................................................................58
Casanova v. State,
383 S.W.3d 530 (Tex.Crim.App. 2012) ...............................................................42
Cathey v. State,
992 S.W.2d 460 (Tex.Crim.App. 1999) ...............................................................25
Cocke v. State,
201 S.W.3d 744 (Tex.Crim.App. 2006) ...............................................................35
vi
Cureton v. State,
800 S.W.2d 259 (Tex.App.—Houston
[14th Dist.] 1990, no pet.) ....................................................................................72
Dickinson v. State,
685 S.W.2d 320 (Tex.Crim.App. 1984) ...............................................................48
Doherty v. State,
892 S.W.2d 13 (Tex.App.—Houston
[1st Dist.] 1994, pet. ref’d) ...................................................................................72
Druery v. State,
225 S.W.3d 491 (Tex.Crim.App. 2007) ...............................................................25
Easter v. State,
536 S.W.2d 223 (Tex.Crim.App. 1976) ...............................................................35
Erlandson v. State,
763 S.W.2d 845 (Tex.App.—Houston
[14th Dist.] 1988, pet. ref’d) ................................................................................55
Ex parte White,
160 S.W.3d 46 (Tex.Crim.App. 2004) .................................................................70
Gamboa v. State,
296 S.W.3d 574 (Tex.Crim.App. 2009) ........................................................ 60, 61
Gamez v. State,
737 S.W.2d 315 (Tex. Crim. App. 1987) .............................................................36
Gardner v. State,
730 S.W.2d 675 (Tex.Crim.App. 1987) ...............................................................60
Goodwin v. State,
307 S.W.2d 264 (1957) ........................................................................................35
Gross v. State,
380 S.W.3d 181 (Tex.Crim.App. 2012) ........................................................ 40, 41
Guevara v. State,
152 S.W.3d 45 (Tex.Crim.App. 2004) .................................................................40
Hernandez v. State,
340 S.W.3d 55 (Tex.App.—Houston
[1st Dist.] 2011, no pet.) .......................................................................................46
Hernandez v. State,
939 S.W.2d 173 (Tex.Crim.App. 1997) ............................................ 24, 26, 31, 33
vii
Herron v. State,
86 S.W.3d 621 (Tex.Crim.App. 2002) .......................................................... 42, 43
Jackson v. Virginia,
443 U.S. 307 (1979) .............................................................................................23
Johnson v. State,
611 S.W.2d 649 (Tex.Crim.App. [Panel Op.] 1981) ...........................................48
Kemp v. State,
846 S.W.2d 289 (Tex.Crim.App. 1992) ........................................................ 60, 61
Kincaid v. State,
534 S.W.2d 340 (Tex.Crim.App. 1976) ...............................................................48
King v. State,
895 S.W.2d 701 (Tex.Crim.App. 1995) ...............................................................23
Kunkle v. State,
771 S.W.3d 435 (Tex. Crim. App. 1986) .............................................................25
Leday v. State,
983 S.W.2d 713 (Tex.Crim.App. 1998) ...............................................................61
Linton v. State,
15 S.W.3d 615 (Tex.App.—Houston
[1st Dist.] 2000, pet. ref’d) ...................................................................................68
Mays v. State,
726 S.W.2d 937 (Tex.Crim.App. 1986) ...............................................................27
Mitchell v. State,
No. 01-09-00865-CR, 2011 WL 1755424 (Tex.App.—Houston
[1st Dist.] 2011, pet. ref’d) (not designated for publication) ...............................68
Mosley v. State,
983 S.W.2d 249 (Tex.Crim.App. 1998) ...............................................................57
Neal v. State,
108 S.W.3d 577 (Tex.App.—Amarillo 2003, no pet.).........................................66
Oprean v. State,
201 S.W.3d 724 (Tex.Crim.App. 2006) ........................................................ 63, 64
Paolilla v. State,
342 S.W.3d 783 (Tex.App.—Houston
[14th Dist.] 2011, pet. ref’d) ................................................................................56
viii
Paredes v. State,
129 S.W.3d 530 (Tex.Crim.App. 2004) ........................................................ 35, 37
Passmore v. State,
617 S.W.2d 682 (Tex.Crim.App. 1981) ...............................................................31
Paulus v. State,
633 S.W.2d 827 (Tex.Crim.App. 1981) ...............................................................26
Penagraph v. State,
623 S.W.2d 341 (Tex.Crim.App. 1981) ...............................................................23
Reynolds v. State,
489 S.W.2d 866 (Tex.Crim.App. 1972) ...............................................................24
Schultze v. State,
177 S.W.3d 26 (Tex.App.—Houston
[1st Dist.] 2005, pet. ref’d) ...................................................................................57
Sharp v. State,
707 S.W.2d 611 (Tex.Crim.App. 1986) ...............................................................24
Smith v. State,
332 S.W.3d 425 (Tex.Crim.App. 2011) ........................................................ 30, 33
Snowden v. State,
353 S.W.3d 815 (Tex.Crim.App. 2011) ........................................................ 58, 59
Snyder v. State,
68 S.W.3d 671 (Tex.App.—El Paso 2000, pet. ref’d) .................................. 25, 27
Soto v. State,
864 S.W.2d 687 (Tex.App.—Houston
[14th Dist.] 1993, pet. ref’d) ................................................................................48
St. Julian v. State,
132 S.W.3d 512 (Tex.App. – Houston [1st Dist.] 2004, pet. ref’d) ....................24
State v. LaRue,
152 S.W.3d 95 (Tex.Crim.App. 2004) ................................................................65
Strickland v. Washington,
466 U.S. 668 (1984) .............................................................................................69
Temple v. State,
342 S.W.3d 572 (Tex.App.—Houston
[14th Dist.] 2010), aff’d on other grounds 390 S.W.3d 341 (Tex.Crim.App.
2013) .............................................................................................................. 53, 54
ix
Thompson v. State,
9 S.W.3d 808 (Tex. Crim. App. 1999) .................................................................69
Vasquez v. State,
67 S.W.3d 229 (Tex.Crim.App. 2002) .................................................................71
Warner v. State,
245 S.W.3d 458 (Tex.Crim.App. 2008) ...............................................................34
Zamora v. State,
411 S.W.3d 504 (Tex.Crim.App. 2013) ...................................... 35, 36, 37, 40, 41
Zunker v. State,
177 S.W.3d 72 (Tex.App.—Houston
[1st Dist.] 2005, pet. ref’d) ...................................................................................57
x
STATUTES
TEX. CODE CRIM. P. ANN. art. 36.01(a)
(West 2006) ..........................................................................................................68
TEX. CODE CRIM. P. ANN. art. 36.28
(West 2006) ..........................................................................................................66
TEX. CODE CRIM. P. ANN. art. 38.14
(West 2005) ..........................................................................................................24
TEX. CODE CRIM. P. ANN. art. 38.14
(West 2006) ..........................................................................................................46
TEX. PENAL CODE ANN. §7.02
(West 2011) ..........................................................................................................36
TEX. PENAL CODE ANN. §7.02(a)
(West 2011) ................................................................................................... 35, 39
TEX. PENAL CODE ANN. §7.02(a)(2)
(West 2006) ..........................................................................................................35
RULES
TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i
TEX. R. APP. P. 39.1.................................................................................................... i
TEX. R. APP. P. 44.2(b) ...................................................................................... 57, 68
TEX. R. APP. P. 9.4(g) ................................................................................................. i
xi
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
The State charged appellant by indictment with the felony offense of
murder.1 Appellant pled not guilty, but a jury returned a guilty verdict on February
23, 2015.2 The jury assessed sentence at 35 years confinement in the Texas
Department of Criminal Justice, Institutional Division after finding both
consecutive enhancement paragraphs “true.”3 Appellant filed timely written notice
of appeal the same day.4 He filed a motion for new trial, but he withdrew it before
the trial court ruled.5
STATEMENT OF FACTS
In September 2012, Michael Hourshad lived in Baytown, Texas, and
supported himself by selling methamphetamine while his roommate sold heroin.6
1
(CR-13);
The appellate record consists of the following:
CR-Clerk’s Record;
RRI-RRX-Court Reporter’s Record from February 10 through 24, 2015, prepared by
Louise Steckler, however amended volume 3 (the voir dire portion), originally
mistitled volume 2 of 7, was recorded by Julia Johnson. The State will refer to it
as RRIII.
2
(CR-170).
3
(CR-173, 182).
4
(CR-199).
5
(CR-204-209, 211-212, 216).
6
(RRIV-32, 33, 37).
Hourshad was friends with Tara Brown Cook, who went by Brown.7 They were
friends for about a year before September 2012, and Hourshad knew appellant as
Brown’s boyfriend.8 He did not know Vernon Brooks, Joseph Kazee, or Rose
Preece.9
On September 25, 2012, the complainant, Sergio Saldana came to
Hourshad’s house to pick up some heroin.10 He arrived around 5:00 pm appearing
antsy and shaky.11 Recognizing he had heroin withdrawal, Hourshad permitted
him to stay and shoot up.12 Saldana went into the bedroom, and returned calmer.13
Hourshad smoked methamphetamine with Saldana.14 Around that time,
Brown and appellant stopped by.15 Before Saldana arrived, Hourshad called
Brown because he heard rumors that Saldana might rob him.16 He asked Brown if
he needed a gun, she thought not, and offered to check on him with appellant.17
7
(RRIV-34, 47, 101).
8
(RRIV-34, 35, 36).
9
(RRIV-36-37). Rose Henderson was known at trial as Rose Preece. Because Stella
Preece and Rose Preece share a last name, the State uses first names to avoid
confusion.
10
(RRIV-37-38).
11
(RRIV-38).
12
(RRIV-38-39).
13
(RRIV-39).
14
(RRIV-39).
15
(RRIV-39-40, 49).
16
(RRIV-47).
17
(RRIV-47).
2
When Saldana was on his way over Hourshad told Brown.18 After Saldana
arrived, Hourshad no longer felt fearful, and when Brown texted to ask if Saldana
knew they were coming, Hourshad replied that Saldana did not seem to know
Brown.19 Brown texted to ask if Saldana was a “real big guy,” he answered,
“Kinda but thing[s] [are] ok they seem[.]”20 Hourshad responded “yes” when
asked if they were alone.21
Appellant and Brown arrived, came inside, and shook hands with Saldana.22
The four spoke briefly, Saldana mentioned that he needed a ride home, and they
offered him one.23 Brown and appellant left briefly, and a few minutes later Brown
texted, “Don’t worry we will be right back what are y’all doing leave the door
unlocked[.]”24
Brown texted, “Did he take the hit yet.”25 Hourshad replied, “Not yet. Um I
will unlock.”26 Two minutes later, Brown texted, “Thank you just don’t stan[d] by
the door okay is he still on the couch[.]” and he texted “yes.”27
18
(RRIV-48).
19
(RRIV-48, 66; State’s Exhibit No. 2).
20
(RRIV-66; State’s Exhibit No. 2).
21
(RRIV-66-67; State’s Exhibit No. 2).
22
(RRIV-49-50).
23
(RRIV-50).
24
(RRIV-51, 52, 67; State’s Exhibit No. 2)
25
(RRIV-67; State’s Exhibit No. 2).
26
(RRIV-67-68; State’s Exhibit No. 2).
27
(RRIV-68; State’s Exhibit No. 2)
3
Saldana felt fearful after they left.28 Saldana knew appellant was an Aryan
Brotherhood of Texas (ABT) member, ABT wanted to hurt Saldana, and he
wondered if he should leave.29 Hourshad reassured.30 Hourshad offered him a
drink and they planned to play PlayStation in the bedroom.31 Hourshad got drinks
and went to the bedroom, but he turned to go back to the kitchen.32
As Hourshad turned around, someone burst through the front door
screaming, “Get down motherfucker.”33 He recognized appellant’s face among the
men coming in.34 He saw three guns and appellant held one.35 He saw two faces,
but he could not see the person standing behind appellant.36 Hourshad denied that
he received Brown’s text 20 minutes after she told him to be away from the door
that said, “there are about to be three people coming in don’t be by the door or by
him don’t worry.”37
Hourshad followed the instruction to “get down” and he covered his head as
he saw Saldana sitting by the PlayStation.38 He did not see Saldana make any
28
(RRIV-52).
29
(RRVI-231-232).
30
(RRVI-232, 233-234).
31
(RRIV-40, 52-53; State’s Exhibit No. 73).
32
(RRIV-52-53).
33
(RRIV-54).
34
(RRIV-54).
35
(RRIV-54).
36
(RRIV-77; RRVI-224-225).
37
(RRIV-69-70; State’s Exhibit No. 2).
38
(RRIV-55).
4
aggressive moves towards the men.39 Saldana laughed when the men came into the
house.40 Someone yelled, “Did you think you could get away?” and he heard
someone punch Saldana.41 The intruders focused on Saldana.42 Hourshad heard
three to four gunshots.43
After a minute, Hourshad peaked through his fingers and he saw the shortest
man with a gun approach and demand “Did you see our face, motherfucker[?]” 44
The man repeated the question several times, but appellant waived him off.45 The
men left after telling him “don’t do anything.…don’t call the police.” 46 Five
minutes after the text about the three men, Hourshad received a text from Brown to
“Erase my messages.”47
Hourshad waited a few minutes, listened to ensure they left, and called
911.48 Emergency personnel arrived and police questioned him.49 He went to the
Baytown Police Department to give a statement that evening, but he lied in it.50 He
feared the gunmen would hurt him or police would accuse him, so he concealed
39
(RRIV-55).
40
(RRVI-230).
41
(RRIV-58).
42
(RRIV-59).
43
(RRIV-59).
44
(RRIV-60).
45
(RRIV-60).
46
(RRIV-60).
47
(RRIV-70; State’s Exhibit No. 2).
48
(RRIV-60-61).
49
(RRIV-62-63).
50
(RRIV-62).
5
Brown’s texts and visit.51 Hourshad’s phone ran out of battery before he could
delete the texts so he threw it in the police station trash.52 Police reviewed
Hourshad’s text messages.53 His call log showed a call from appellant at 6:33 and
one from Brown which occurred at the same time Hourshad called 911.54
Police charged Hourshad with aggravated assault and possession of
controlled substances found when they searched his house.55 The State dismissed
the assault charge and Hourshad pled guilty to a six-year deferred on the
possession charge in January 2014.56
Brown testified that she had an intermittent relationship with appellant.57
Hourshad called her on September 25, 2012, and they exchanged texts.58 She and
appellant went to Hourshad’s and saw Saldana with him.59 She knew Saldana.60
She arrived while he heated heroin in the bedroom.61 Hourshad appeared nervous,
51
(RRIV-63, 64).
52
(RRIV-70, 79-80, 95-96; RRVI-136).
53
(RRIV-90, 91-92, 93; State’s Exhibit No. 18)
54
(RRIV-51, 65; State’s Exhibit No. 114).
55
(RRIV-71-72).
56
(RRIV-72).
57
(RRIV-101, 102).
58
(RRIV-105).
59
(RRIV-107)
60
(RRIV-107).
61
(RRIV-108).
6
but Saldana did not act aggressive.62 Saldana sat and talked with them, but they left
15 minutes later.63
During the brief conversation, appellant went outside with his phone.64
Appellant came back and said they had to go.65 Appellant drove her to meet
Vernon “Dinky” Brooks, Joseph “Worm” Kazee, and Stella Preece after Brooks’
truck run out of gas.66 They picked up Brooks, and appellant drove him to a gas
station.67 The jury saw surveillance photographs of appellant entering the gas
station alone on September 25, 2012 at 5:55 p.m.68
Ten minutes later appellant drove them to Brooks’ truck.69 Appellant spoke
to Brooks privately before he instructed Brown to text Hourshad.70 The text
messages occurred primarily between 17:10 and 17:29 when the couple first
arrived at Hourshad’s.71 They exchanged more texts after the couple left while
Brooks got gas at 17:56 about Hourshad leaving the door unlocked.72
62
(RRIV-109).
63
(RRIV-110).
64
(RRIV-111).
65
(RRIV-114).
66
(RRIV-115, 116, 139).
67
(RRIV-117).
68
(RRIV-118-119; State’s Exhibit No. 19-24).
69
(RRIV-119, 120, 121).
70
(RRIV-121, 129, 133).
71
(RRIV-126; State’s Exhibit No. 2).
72
(RRIV-126; State’s Exhibit No. 2).
7
After getting the gas, appellant drove them to Hourshad’s while Brooks
followed.73 Brown texted more questions appellant asked her to send from 17:56
through 18:00.74 Brown did not know what would happen.75 She knew Brooks
had a past altercation with Saldana.76 Appellant instructed Brown at 18:24 to text
Hourshad there would be three people coming in and he should avoid the door and
Saldana.77 At 18:29, Brown texted that he should erase her messages.78
While they drove to Hourshad’s, Brown recalled appellant talking or texting
on his own phone.79 When they arrived the second time, appellant took off his top
two shirts, and left the car in a tank top.80 Appellant carried his Springfield nine-
millimeter semiautomatic handgun.81 Appellant placed the gun in his pants.82
Brooks and Kazee went into the house after appellant.83 Stella never went in.84
Brown heard two gunshots one right after the other.85 Appellant, Brooks,
and Kazee came out with appellant in the lead.86 Brown drove because appellant
73
(RRIV-127).
74
(RRIV-129, 130).
75
(RRIV-131, 132, 133).
76
(RRIV-131).
77
(RRIV-133).
78
(RRIV-133, 134; State’s Exhibit No. 2).
79
(RRIV-135).
80
(RRIV-136, 137).
81
(RRIV-137, 167).
82
(RRIV-138).
83
(RRIV-141-142).
84
(RRIV-168).
85
(RRIV-143).
8
told her to move before he went inside.87 Appellant got into the passenger seat,
and told her that Brooks shot at Saldana but he thought the bullet missed him.88
Brown called Hourshad fearful for his safety, but he did not answer.89 When he
finally answered a later call, he had already called 911 and still sounded
hysterical.90
Brown drove appellant to his mother’s, and then they returned to Brown’s
trailer.91 They knew police would seek them and they run for two weeks, but
Brown turned herself in on October 1, 2015.92 She tried to clear appellant’s name
by relaying the things he told her, but she lied at appellant’s request about his
going into the house.93 Police knew about the text messages, they arrested her for
murder, and she spent a year in custody before the State dismissed the charge in
exchange for her truthful testimony.94
Kazee knew appellant as “JoJo” and his girlfriend Brown.95 He knew
Brooks, Stella as Brooks’ girlfriend, and Rose as Stella’s sister.96 On September
86
(RRIV-143).
87
(RRIV-144).
88
(RRIV-144-145).
89
(RRIV-145, 169-170).
90
(RRIV-169-170).
91
(RRIV-145, 146).
92
(RRIV-147, 148).
93
(RRIV-148-150).
94
(RRIV-151-153, 154).
95
(RRIV-176, 177-178).
96
Id.
9
25, Kazee came into contact with Brooks, Stella, and Rose in the afternoon.97
Brooks picked Kazee up to give him a ride.98
Kazee was an ABT member for ten years, and he knew Brooks was a captain
in ABT.99 Kazee lacked rank and acted as a soldier requiring him to obey Brooks’
commands or risk death.100 Kazee knew appellant as an ABT enforcer.101
Earlier in September, Brooks had an altercation with Saldana, and he
informed ABT members “to take violent action against” Saldana.102 The 25th
Kazee heard Brooks get a call from appellant.103 Kazee recognized appellant’s
voice.104 Appellant told Brooks he knew where to find Saldana, Brooks’ demeanor
changed, and he started to drive to Baytown.105 Stella and Rose were also in the
car.106
Stella, the older sister, insisted that Rose get out of the car, and she
convinced Brooks to drop her at a gas station.107 As they drove to Baytown,
97
(RRIV-178-179).
98
(RRIV-179).
99
(RRIV-187, 188).
100
(RRIV-188, 195).
101
(RRIV-188-189).
102
(RRIV-189-190).
103
(RRIV-191).
104
(RRIV-191).
105
(RRIV-192).
106
(RRIV-192).
107
(RRIV-192).
10
Brooks’ truck ran out of gas.108 Appellant met them and got them gas.109 Kazee
thought Brooks stayed with the truck while appellant went for gas.110
Appellant put gas in Brooks’ truck, and they drove to Baytown.111 Appellant
showed Brooks the way to Saldana’s location.112 Kazee understood they went to
find Saldana and, “that he was only going to be beat up[.]”113 Kazee was under
Brooks’ order to be violent towards Saldana, but neither Stella nor Kazee were
privy to appellant and Brooks’ plan.114
At the house, Kazee saw Brooks take a .38 caliber revolver from his toolbox
in the back of his truck, and he saw that appellant held a large-caliber
semiautomatic.115 Kazee did not carry a gun.116 He heard appellant say, “Let’s do
this.”117 Someone said Saldana’s name, and Kazee saw Saldana in the bedroom.118
Appellant went up to Saldana, hollered at him, and pulled his gun.119 Brooks
struck Saldana in the head with the gun.120 Saldana fell to the floor and Brooks
108
(RRIV-192).
109
(RRIV-193-194).
110
(RRIV-194).
111
(RRIV-194).
112
(RRIV-194-196).
113
(RRIV-194).
114
(RRIV-195,211-213).
115
(RRIV-196, 197, 208).
116
(RRIV-197).
117
(RRIV-197).
118
(RRIV-198).
119
(RRIV-198-199).
120
(RRIV-199).
11
kicked him.121 Saldana crawled away, and Kazee heard gunshots from where
appellant stood.122 He heard two shots and saw Brooks fire the second.123 Kazee
thought the first bullet struck Saldana because he had a chest wound.124
The men turned to go, but someone opened the bathroom curtains.125
Brooks went to him and put his gun in the man’s face.126 Brooks and appellant
turned to leave.127 Appellant left first, then Kazee and Brooks.128 Appellant left in
his truck, and Stella drove Kazee and Brooks to a gas station.129
After the gas station, Brooks drove them to the river bottom in Channelview,
and he went off into the salt grass where Kazee could not see him.130 When
Brooks returned to the truck, he did not have the gun.131 Brooks had them wash off
the gunshot residue.132 He ordered Kazee to stay with them for a few hours before
Kazee returned to his aunt’s.133
121
(RRIV-199).
122
(RRIV-200).
123
(RRIV-200).
124
(RRIV-200).
125
(RRIV-201-202).
126
(RRIV-202).
127
(RRIV-202).
128
(RRIV-202).
129
(RRIV-203).
130
(RRIV-204).
131
(RRIV-204).
132
(RRIV-204).
133
(RRIV-204-205).
12
Police interviewed Kazee two weeks later, but he lied.134 Police did not
charge Kazee with a crime.135 When he testified, he was no longer an active ABT
member.136
Stella was in a relationship with Brooks.137 She knew appellant through
Brooks and through Rose.138 While she, Brooks, Rose and Kazee played video
poker, Brooks received a call from appellant, but she did not hear the contents of
the call.139 They left the gas station and Brooks told her they left to meet appellant
and Brown.140
The group got into Brooks’ truck.141 Rose, Stella, and Kazee went as
passengers.142 During the trip, Brooks answered another call from appellant, and
Stella became upset because she did not want Brooks to see Saldana, and she did
not want to leave the game room.143 Stella insisted that Rose not accompany them
because did not want Rose to be a part of any trouble.144 She did not know what
134
(RRIV-205).
135
(RRIV-206).
136
(RRIV-207).
137
(RRIV-223).
138
(RRIV-224-225).
139
(RRIV-226).
140
(RRIV-227).
141
(RRIV-227).
142
(RRIV-227).
143
(RRIV-228-229).
144
(RRIV-229).
13
would happen, but Rose should not be there.145 She convinced Brooks to drop
Rose at the river bottom.146
Brooks acted aggressive and he would not listen when Stella dissuaded
him.147 She begged him not to go, and Kazee also dissuaded Brooks, but Brooks
just became irritated.148 They ran out of gas, appellant took Brooks to get gas, and
he put gas in Brooks’ truck.149 Brooks followed appellant to Saldana’s location.150
When they arrived, appellant got out of his truck, but Stella did not see
Brown get out.151 She did not see if appellant carried anything because she was
arguing with Brooks until Brooks and Kazee got out of the truck.152 She saw
nothing in Brooks and Kazee’s hands, and she did not know that Brooks had a gun
with him.153 Brooks owned guns, but he did not usually carry one.154
Stella saw appellant enter the house first, then Kazee, and last Brooks.155
The men were not in the house long, and Stella sat in the car with the radio turned
145
(RRIV-230).
146
(RRIV-229).
147
(RRIV-230).
148
(RRIV-231).
149
(RRIV-231).
150
(RRIV-232-233).
151
(RRIV-234).
152
(RRIV-234).
153
(RRIV-234-235).
154
(RRIV-235).
155
(RRIV-235).
14
up.156 She did not hear any noises before she saw the men come out.157 They
walked quickly to the trucks and appeared “[s]hook up, nervous.”158
Stella drove to the river bottoms at Brooks’ instruction, where Brooks got
out for a few minutes, then returned, and they left.159 The three stayed together for
a few hours, but her relationship with Brooks soon ended.160
Stella learned from a newspaper article the following day about Saldana’s
murder.161 On cross-examination she agreed that she “could have been charged in
connection with this” and that police “considered it[.]”162 Stella knew of no plan to
harm Saldana at the time, she believed they would just “talk some shit” to him.163
Rose had previously had an intimate relationship with appellant.164 On
September 25, she was with Kazee, Preece, and Brooks.165 Brooks got a call from
appellant that he answered on speaker, and Rose recognized appellant’s voice.166
Appellant said, “I’ve got it. Hey, I got that—I got him.”167 Brooks said he had
people in the car, but appellant told him, “You asked for anybody to get—to stop
156
(RRIV-236).
157
(RRIV-236).
158
(RRIV-236).
159
(RRIV-237, 238).
160
(RRIV-238-239).
161
(RRIV-241).
162
(RRIV-244).
163
(RRIV-246).
164
(RRIV-273, 275).
165
(RRIV-277).
166
(RRIV-277-278).
167
(RRIV-278).
15
and get this guy.”168 In the background she and Stella heard Brown, Stella shouted
at Brooks and he ended the call.169 She thought appellant called back and Brooks
appeared “tensed up,” drove faster, and got red.170
Rose thought appellant “pull[ed] [Brooks’] card” meaning Brooks would
lose status if he did not follow through on past statements.171 Brooks immediately
began driving to Baytown, but Stella did not want him to go and she wanted Rose
out of the car.172 Stella tried to talk Brooks out of “going and beating this dude’s
ass.”173 Kazee also asked to be let out of the truck.174
Rose heard appellant say that “Tara can talk to Sergio”, and he thought Tara
could convince him to go someplace else.175 Brooks stopped, Rose got out, and
she tried to convince Stella to stay with her.176 Rose did not see any weapons in
the truck, and Brooks did not talk about shooting or killing Saldana.177 Brooks
168
(RRIV-279).
169
(RRIV-279).
170
(RRIV-280).
171
(RRIV-284-285).
172
(RRIV-280).
173
(RRIV-280).
174
(RRIV-281).
175
(RRIV-281, 282).
176
(RRIV-283).
177
(RRIV-294).
16
drove off, and she did not see Stella again until days later.178 Rose later confronted
appellant about involving Stella, and appellant apologized.179
A gang expert with Baytown Police Department assisted because police
knew only nicknames from Hourshad’s texts.180 He identified “JoJo” as
appellant.181 Appellant is documented statewide as an ABT member.182 Appellant
has tattoos common among ABT members.183 Joseph Kazee also has a consistent
ABT tattoo.184 Kazee and Brooks are documented ABT members.185 The three
women are known ABT associates.186
ABT members must sign a “Blind Faith Commitment” and follow the
gang’s constitution.187 Even when a member disagrees with an order, he cannot
disobey it, but he may complain later in a grievance procedure.188 Disobedient
members face discipline from beatings to murder, but obedient members may
increase in rank.189 The gang’s code forbids members from cooperating with law
178
(RRIV-286-287).
179
(RRIV-289).
180
(RRIV-253,254,256).
181
(RRIV-258, 259).
182
(RRIV-259-260).
183
(RRIV-262).
184
(RRIV-263).
185
(RRIV-265-266).
186
(RRIV-269-270).
187
(RRIV-304,305).
188
(RRIV-305-306).
189
(RRIV-306, 307).
17
enforcement, and cooperation could result in the person’s death.190 Vernon Brooks
was a permanent captain for ABT.191
In the room where police found the body, a crime scene investigator found a
copper-jacketed projectile in the mattress.192 The projectile entered the box springs
at a 40 to 50 degree angle.193 He recovered a projectile from the floor beneath
Saldana’s body.194 He found a shell casing on the bed likely ejected from a
semiautomatic weapon.195
The casing belonged to a nine millimeter Luger PPU type cartridge.196 The
projectile from the bed was consistent with firing from a nine-millimeter
semiautomatic weapon.197 But the characteristics from the floor projectile were
consistent with a revolver.198 At least two firearms were fired in the room. 199 A
DNA analysis of the projectile recovered from beneath Saldana showed it
contained biological material consistent with his profile.200
190
(RRIV-308-309).
191
(RRIV-310).
192
(RRVI-37, 45).
193
(RRVI-57).
194
(RRIV-45).
195
(RRVI-54).
196
(RRVI-85).
197
(RRIV-91).
198
(RRVI-95, 104).
199
(RRVI-97).
200
(RRVI-212).
18
Saldana died from a single gunshot wound that entered on the left side of his
body and exited through his right upper back near his shoulder. 201 As it passed
through his body it caused extensive blood loss.202
The lead investigator interviewed Hourshad and learned ABT might be
involved.203 She tracked down information on Brown from her phone number, but
she could not find appellant or Brown when she searched for them. 204 She charged
Brown with murder and a prosecutor took aggravated assault on Hourshad.205 She
sought charges on Brooks and appellant, but the prosecutor declined because she
lacked independent corroboration.206 Finally, because of additional investigation
and recovery of the firearms evidence, the prosecutor accepted a charge on
appellant in December 2013.207
The investigator determined that Hourshad, Brown, Kazee, Brooks, and
appellant were involved in the murder.208 She did not consider Stella a participant
because she never went into the house, she had no part in setting it up, and nothing
indicated that she encourage the crime.209
201
(RRVI-15,17-18,21,29).
202
(RRVI-19-20).
203
(RRVI-125,126,139).
204
(RRVI-141, 142)
205
(RRVI-149-152).
206
(RRVI-151,153,157-158).
207
(RRVI-163,166,168-169).
208
(RRVI-178).
209
(RRVI-178).
19
Appellant called two ABT members who claimed that appellant was not
ABT.210 Both claimed they met with Brooks a different times and he disclosed that
someone was taking a murder case for him.211 Patrick Miller claimed Brooks
confessed to shooting Saldana with a revolver.212 Miller maligned the three
women and claimed they were “sack chasers” meaning they chased dope and
would be with anyone that could supply their habit.213
Roy Ates referred to Stella as “Bro Ho” and a “sack chaser.”214 He claimed
she would be with the person with the largest sack of dope.215 He lacked
familiarity with Brown, and knew Rose only as Stella’s sister.216 He claimed
anyone could get whatever he wanted from Stella, Rose, and Kazee in exchange
for dope.217
The prosecutor impeached both men with their extensive criminal histories,
and Miller with a statement he gave in another murder case.218 Jurors saw a
photograph of Miller with other ABT members.219 The State asked Ates about his
initial statement which implicated two other women, but Ates denied changing his
210
(RRVI-235, 236, 266).
211
(RRVI-238-239,268,270,271-272).
212
(RRVI-241).
213
(RRVI-243-243).
214
(RRVI-275, 276).
215
(RRVI-276).
216
(RRVI-276).
217
(RRVI-276).
218
(RRVI-249-250,252).
219
(RRVI-255-256).
20
story.220 During his testimony, Ates volunteered without objection that one could
only be an ABT member if he had been to prison.221 The jury found appellant
guilty as charged.222
SUMMARY OF THE ARGUMENT
More than sufficient evidence outside of the accomplice witnesses tended to
connect appellant to the murder. Rose’s testimony, Stella’s testimony, the physical
evidence, and the text messages connected appellant to the crime.
The trial judge properly found from the evidence that Stella was not an
accomplice. Yet, even had she been, the error did not cause egregious harm when
Rose’s testimony, the firearm’s evidence, and the text messages sufficiently
connected appellant.
The comments the prosecutor made during guilt phase closing argument
amounted to proper summation, reasonable deductions, and invited argument. The
trial court did not err by overruling appellant’s objections, but had she the
comments did not cause substantial and injurious harm. The prosecutor did not
make a specific comment on appellant’s failure to testify, but had she, no harm
resulted.
220
(RRVI-280, 281).
221
(RRVI-286).
222
(RRVIII-5).
21
Brown’s statement that appellant was “in and out of prison,” was cured by
the trial court’s instruction to disregard and the same evidence came in without
objection waiving error.
The prosecutor did not deliberately conceal Brown’s recorded statement, and
the trial court broke to give defense counsel an opportunity to hear the recording
during trial. No prejudice resulted from the delayed disclosure and nothing
demonstrated it contained Brady material.
The trial judge did not abuse her discretion by allowing the read back
testimony the jury requested. She read the questions and answers relevant to the
jury’s inquiry and the necessary context information to make it make sense.
Any error in a failure to arraign appellant on his felony enhancement
paragraphs did not harm him.
Trial counsel did not perform deficiently by failing to object to the lack of an
accomplice witness instruction for Stella because she did not act as an accomplice.
The order of the parties law and the accomplice instructions was not erroneous so
any objection meritless. Trial counsel repeatedly objected to admissibility of the
ABT evidence, the trial court considered it, and overruled the objections because
the gang evidence was relevant and admissible to show motive.
Appellant did not preserve error to his claim that the State improperly
impeached Miller and Brooks.
22
REPLY TO APPELLANT’S FIRST POINT OF ERROR
Appellant first contends that the evidence was insufficient to corroborate the
accomplices. Appellant premises his sufficiency argument on Stella being an
accomplice, and claims Rose’s testimony alone is not enough to connect him.
Appellant ignores not only Stella’s testimony, but also the physical evidence which
included firearms evidence, text messages, the ABT connection, and the gas station
photographs. Considering the evidence as a whole, it tended to connect appellant
to the murder.
I. The standard of review and applicable law on sufficiency and corroboration
of accomplice testimony
In reviewing the legal sufficiency of the evidence, the appellate court
determines whether, when viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt.223 This standard of review applies to both
direct and circumstantial evidence.224
The jury is the exclusive judge of the facts, the credibility of the witnesses,
and the weight given to the witnesses’ testimony. 225 The jury may reasonably infer
223
Jackson v. Virginia, 443 U.S. 307, 319 (1979).
224
King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).
225
Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981).
23
facts from the evidence presented, credit the witnesses it chooses to, disbelieve any
or all of the evidence or testimony proffered.226
The Texas legislature stated in article 38.14 of the Texas Code of Criminal
Procedure that, “A conviction cannot be had upon the testimony of an accomplice
unless corroborated by other evidence tending to connect the defendant with the
offense committed; and the corroboration is not sufficient if it merely shows the
commission of the offense.”227 The reviewing court assesses the sufficiency of
corroborating evidence by eliminating from consideration the testimony of the
accomplice and examining the other evidence to ascertain if it tends to connect the
accused with the commission of the offense.228
“The non-accomplice evidence need not be sufficient in itself to establish the
accused’s guilt beyond a reasonable doubt…Nor is it necessary for the non-
accomplice evidence to directly link the accused to the commission of the
offense.”229 The prosecution satisfies the accomplice witness rule, “if there is some
non-accomplice evidence which tends to connect the accused to the commission of
the offense alleged in the indictment.”230
226
Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986).
227
TEX. CODE CRIM. P. ANN. art. 38.14 (West 2005).
228
St. Julian v. State, 132 S.W.3d 512, 516 (Tex.App. – Houston [1st Dist.] 2004, pet.
ref’d)(citing Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App. 1997)).
229
Hernandez, 939 S.W.2d at 176.
230
Id. (emphasis original).
24
The Texas legislature statutorily imposed a sufficiency review under the
accomplice-witness rule.231 It is not derived from federal or state constitutional
principles that define the legal and factual sufficiency standards.232 The burden
upon the prosecution requires only that it provide some other evidence tending to
connect the defendant to the offense.233 The Court considers a witness an
accomplice if the person participated with the accused before, during or after the
commission of the crime.234 A witness is an accomplice as a matter of law when
charged with the same offense or a lesser included of the offense for which the
defendant is tried.235
II. The jury heard more than sufficient evidence to establish appellant’s guilt
apart from accomplice testimony
Ample evidence corroborated the accomplice evidence in this case and
connected appellant to the crime. The proper focus is not whether the other
evidence standing alone sufficiently establishes guilt, but whether after eliminating
from consideration the accomplice testimony, the other evidence is inculpatory and
tends to link appellant to the crime.236 While individually a circumstance might
not be sufficient to corroborate the accomplice testimony, taken together, if
231
Cathey v. State, 992 S.W.2d 460, 462-463 (Tex.Crim.App. 1999).
232
Id.
233
Id. at 463.
234
Kunkle v. State, 771 S.W.3d 435, 439 (Tex.Crim.App. 1986)(citations omitted).
235
Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App. 2007).
236
Snyder v. State, 68 S.W.3d 671, 677 (Tex.App.—El Paso 2000, pet. ref’d).
25
rational jurors could conclude that the evidence sufficiently tended to connect
appellant to the offense the evidences suffices.237
a. The text messages connected appellant to the crime
Tara Brown’s texts to Hourshad repeatedly referred to “we” when she asked
if he knew “we are coming”, “we are on our way”, and “we will be right back”.238
She texted, “[t]here are about to be three people coming in don’t be by the door or
by him don’t worry.”239 Rose heard appellant and Brown together over Brooks’
call while Brown texted “we.”240 Rose heard appellant tell Brooks, “I got him”
shortly before he mentioned “Sergio.”241 Rose’s testimony with the texts identified
appellant.
b. Rose Preece’s testimony connected appellant to the crime
Rose heard Brown’s and appellant’s voice on the call.242 And Brooks
identified them.243 The call established that Brown and appellant were together,
237
Hernandez, 939 S.W.2d at 178-79 (holding suspicious circumstances filled sufficiency
gap left by evidence of appellant’s mere presence at the scene of the offense); Paulus
v. State, 633 S.W.2d 827, 846 (Tex.Crim.App. 1981) (evidence showing motive or
opportunity can be considered in connection with other evidence tending to connect
the accused to the crime)).
238
(State’s Exhibit No. 2).
239
Id.
240
(RRIV-276,277,278,279,280,281).
241
(RRIV-278, 282).
242
(RRIV-279).
243
(RRIV-281).
26
and that they found the person Brooks wanted.244 Appellant referred to Brown and
Saldana during the call, “Tara can talk to him, this guy, Sergio, that Tara can talk
to him and get him to go somewhere.”245
Rose understood that Brooks and appellant “were just going to be beating
this guy’s ass[.]”246 The call caused such a disturbance in Brooks’ truck that Stella
insisted Brooks stop to let Rose out of the car, but she saw Kazee, Stella, and
Brooks leave together.247 Rose said appellant “pull[ed] [his] card” because the
meant Brooks had to participate or lose status.248
After the murder, Rose confronted appellant about involving Stella and
getting her in trouble.249 Rather than deny involvement or claim no knowledge or
intent, appellant responded “I’m sorry.”250 A defendant’s confession to
committing the crime may be sufficient to corroborate an accomplice’s testimony
“so long as proof of the confession does not depend upon the testimony of the
accomplice.”251 Rose testimony alone connected appellant to the crime based on
244
(RRIV-278-281).
245
(RRIV-282).
246
(RRIV-282).
247
(RRIV-281, 282-283, 285).
248
(RRIV-284-285).
249
(RRIV-288, 289).
250
(RRIV-289).
251
Snyder, 68 S.W.3d at 677 n. 5; Mays v. State, 726 S.W.2d 937, 942 (Tex.Crim.App.
1986)).
27
his comments about using Brown to get Brooks close to “Sergio” on the same day
three men murdered Sergio Saldana.
c. Stella Preece connected appellant directly to the murder
The trial court decided the evidence did not raise a fact issue about whether
Stella was an accomplice.252 It did not include her on the list of people that could
have been charged with the murder or a lesser-included of it.253 As addressed in
the State’s response to the next point of error, an instruction on Stella was not
required, and this Court should consider Stella’s testimony in its sufficiency
analysis.
Stella was with Rose and Brooks when Brooks received the call from
appellant.254 They left the game room to meet appellant and Brown.255 During the
ride, Brooks received another call from appellant, and the call upset Stella because
she did not want to go with Brooks to meet with appellant and Brown, and she did
not want Rose to go.256 She knew from the call there would be “trouble” and she
did not want to go.257 She and Kazee tried to talk Brooks out of going.258
252
See (CR-160-162).
253
Id.
254
(RRIV-226, 227).
255
(RRIV-227).
256
(RRIV-228-229).
257
(RRIV-229).
258
(RRIV-230).
28
They ran out of gas, Brooks called appellant, and appellant took Brooks to
get more.259 Stella understood they were going to see “Sergio.”260 Sergio was the
man Brooks had a previous altercation with.261 Appellant told Brooks where to
find Sergio, and they were headed to him.262 Brooks followed appellant’s truck
there.263 They could not have gone without appellant showing them the way.264
At the house, appellant got out with Brooks and Kazee.265 They went into
the house as appellant led the charge.266 They came out a few minutes later,
walked fast, and appeared shaken up.267
Stella later talked to appellant and learned something happened when they
went inside.268 The day after, she learned that Sergio Saldana had been
murdered.269 Stella’s testimony more than sufficed to connect appellant to
Saldana’s murder.
259
(RRIV-228).
260
(RRIV-231).
261
(RRIV-231-232).
262
(RRIV-232).
263
(RRIV-232).
264
(RRIV-233-234).
265
(RRIV-234).
266
(RRIV-235).
267
(RRIV-236).
268
(RRIV-241).
269
(RRIV-241).
29
d. The gas station surveillance photographs corroborated the accomplice
witness testimony and tended to connect appellant to the crime
Circumstantial evidence may corroborate accomplice testimony and connect
a defendant.270 To corroborate Stella’s testimony and link appellant to the crime,
the State presented photographs from the gas station where appellant took
Brooks.271 The date and time corroborated Brown, Kazee, and Stella’s testimony
about Brooks running out of gas and appellant getting more to get them to Saldana.
e. The firearms evidence tended to connect appellant to the crime
The firearms evidence further connected appellant to the murder. Brown
testified that appellant left the truck to go into Hourshad’s house carrying a nine-
millimeter semiautomatic handgun.272 She knew him to carry a nine-millimeter in
the truck.273 Kazee saw Brooks holding a revolver and appellant with a black
semiautomatic handgun.274
Police recovered two projectiles and one casing from the bedroom. 275 One
of the projectiles was consistent with being fired from a revolver, and the casing
270
Smith v. State, 332 S.W.3d 425, 442 (Tex.Crim.App. 2011) (citations omitted).
271
(RRIV-117; State’s Exhibit No. 19-24); compare (State’s Exhibit No. 23)
(surveillance photograph) with (State’s Exhibit No. 25) (identification photograph of
appellant).
272
(RRIV-137, 138).
273
(RRIV-138).
274
(RRIV-196, 197).
275
(RRVI-45,54,55,57,61,73-75).
30
and other projectile from a nine-millimeter semiautomatic.276 At least two
different firearms produced the evidence.277 The types of firearms used during the
murder provided additional circumstantial evidence which tended to connect
appellant to the murder. The Court of Criminal Appeals in Hernandez v. State held
that “Proof that connects appellant to a weapon similar to that used in the offense is
another circumstance to be considered when determining the sufficiency of
evidence to corroborate the accomplice.”278
f. Appellant fled after the murder and hid from police
The investigator searched for appellant and Brown after the murder, but
could not locate them.279 Appellant changed his cell phone so when police tried to
“ping” it to locate him, the number was no longer active.280 Appellant’s deliberate
flight after the murder and attempt to hide from police connected him to the
crime.281 The Court of Criminal Appeals held that flight and guilty demeanor
276
(RRVI-85,90-91,94,95,97,98,104).
277
(RRVI-97).
278
Hernandez, 939 S.W.2d at 178 (“[E]ven evidence that a defendant had a gun which
was merely similar to the murder weapon may corroborate accomplice testimony.”).
279
(RRVI-138-139,140,142,154).
280
(RRVI-154).
281
See Hernandez, 939 S.W.2d at 178 (“Evidence of flight and guilty demeanor, coupled
with other corroborating circumstances, may tend to connect a defendant with the
crime.”); Passmore v. State, 617 S.W.2d 682, 685 (Tex.Crim.App. 1981) (evidence
presented at trial showing flight corroborates accomplice testimony).
31
coupled with other corroborating circumstances may serve to corroborate
accomplice testimony.282
g. Appellant’s motive to participate in the murder connected him
The evidence of appellant’s connection with and enforcer status in ABT
tended to connect him to the murder. Appellant was a member of ABT.283 He
bore tattoos consistent with status as ABT.284 Rose knew appellant as an ABT
member and an enforcer for it.285 Brooks’ had a prior altercation with Saldana,
appellant pulled Brooks’ card to make him live up to his threats.286 Appellant
began the call by telling Brooks had asked “for anybody to…stop and get this
guy.”287
ABT members must sign a Blind Faith Commitment and follow orders
without question or face discipline.288 As a captain, Brooks could give orders to
lower ranking Kazee and appellant.289 The gang evidence showed appellant’s
motive to participate in the crime and assist Brooks in retaliating against Saldana.
282
Id.
283
(RRIV-254, 258, 259, 261).
284
(RRIV-261,262,264-265,268,312-313).
285
(RRIV-295, 296, 297).
286
(RRIV-232, 284-285).
287
(RRIV-279).
288
(RRIV-304, 306, 307).
289
(RRIV-304, 306, 310).
32
h. Considered as a whole, evidence outside of accomplice testimony tended
to connect appellant to the murder
The Court of Criminal Appeals explained, “[t]he sufficiency of non-
accomplice evidence is judged according to the particular facts and circumstances
of each case.”290 When the record presents conflicting views of the evidence with
one tending to connect the defendant and the other not, a reviewing court must
defer to the factfinder’s resolution.291 The jury was properly charged on
accomplice evidence, they knew it needed corroboration, and they found from the
non-accomplice evidence that it tended to connect appellant to this murder.292
Viewed in its totality, the physical evidence, surveillance photographs, text
messages, and the Preece sisters’ testimony more than sufficed connect appellant
to Saldana’s murder.293 This Court must overrule appellant’s first point of error.
REPLY TO APPELLANT’S SECOND POINT OF ERROR
The trial court concluded that Stella Preece was not an accomplice in
Saldana’s murder. The jury charge was not erroneous. Yet, even had the trial
court erred by failing to include an accomplice as a matter of fact instruction on
290
Smith, 332 S.W.3d at 442.
291
Id.
292
(CR-160-162, 170; RRVII-17,18,20-22,24-25,38-39,44,47-48,51-52,59,64).
293
Smith, 332 S.W.3d at 442; Hernandez, 939 S.W.2d at 176-179 (evidence the
defendant was with the complainant two hours before the killing, two people killed
the victim, the defendant fled after the murder, the defendant in the past possessed one
of the types of weapons, and the defendant drank the type of beer found at the scene
sufficient to corroborate accomplice evidence).
33
Stella, egregious harm did not result because other non-accomplice evidence
tended to connect appellant to the murder.
I. The standard of review and applicable law regarding charge error and
accomplice witness instructions
Reviewing courts consider jury charge error in a two-step process: (1)
determining whether error occurred, and if so, (2) whether the error caused
sufficient harm to warrant reversal.294 The amount of harm necessary for reversal
depends upon whether trial counsel preserved the complaint.295
Absent objection a reviewing court should not reverse unless the error
caused egregious harm denying appellant a fair trial.296 The Court examines “the
entire jury charge, the state of the evidence, including the contested issues and
weight of probative evidence, the argument of counsel, and any other relevant
information revealed by the record of the trial as a whole” when considering
egregious harm.297 Appellant must suffer some actual, not theoretical, harm.298
A witness is an accomplice when she participates with the defendant before,
during, or after the commission of the crime charged, and she acts with the
294
Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Abdnor v. State, 871
S.W.2d 726, 731-32 (Tex.Crim.App. 1994).
295
Id.
296
Almanza, 686 S.W.2d at 171; see also Warner v. State, 245 S.W.3d 458, 461
(Tex.Crim.App. 2008).
297
Id.
298
Warner, 245 S.W.3d at 461.
34
required mental state.299 Accomplice status may exist under Texas Penal Code
Section 7.02(a) or 7.02(b) because the witness could be charged with the same or a
lesser included of the charged offense.300
To be an accomplice, the person must act ‘“with the requisite culpable
mental state,’ and perform[ ] an ‘affirmative act that promotes the commission of
the offense with which the defendant is charged.’”301 One is not an accomplice if
merely present during the offense, or even if the person knew about the crime,
failed to disclose it, or concealed it.302 When the evidence does not demonstrate an
ongoing conspiracy to attempt or carry out a felony made by the alleged
accomplices, or affirmative acts to assist in the murder, no instruction is
required.303
The testimony of a witness without complicity in the charged offense is not
accomplice-witness testimony, regardless of the person’s complicity with the
accused in other offenses unless the person was involved in a conspiracy to commit
one felony, the murder was committed in furtherance of that conspiracy, and that
the witness should have anticipated that a murder could result from the
299
Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004) (citing TEX. PENAL
CODE ANN. §7.02(a)(2) (West 2006)) (emphasis added).
300
Zamora v. State, 411 S.W.3d 504, 510-11 (Tex.Crim.App. 2013).
301
Id. at 510 (quoting Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App. 2006)).
302
Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998).
303
Paredes, 129 S.W.3d at 539.
35
conspiracy.304 When the evidence is conflicting and the status is not clear on the
witness’s accomplice-status, the trial court should leave the question to the jury
after defining the term.305
II. Stella was not an accomplice
The evidence did not support the conclusion that Stella Preece acted as a
party under a Texas Penal Code section 7.02(a), and the evidence did not raise the
theory that Stella was a party pursuant to section 7.02(b) as a coconspirator.306
304
See Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987); see also Zamora,
411 S.W.3d at 510-11 (citing TEX. PENAL CODE ANN. §7.02(b) (West 2006), but
explaining the evidence raised the theory when the jury was charged on coconspirator
liability in the party’s instruction on the charged offense); TEX. PENAL CODE ANN.
§7.02(b) (West 2011) (defining party liability under a coconspirator theory).
305
Paredes, 129 S.W.3d at 536.
306
See (CR-157-158, 160) (defining party status to including only the section 7.02(a)
definition); (RRIV-47-52, 59; State’s Exhibit No. 2) (Hourshad communicated only
with Brown and appellant, and he saw three men in the room); (RRIV-105-111,113-
145-145;State’s Exhibit No. 2) (Brown did not implicate Stella in acts leading up to or
following the murder, and indicated she was merely present in Brooks’ truck at the
time); (RRIV-192-205) (Kazee explained there was no discussion about what would
happen or what anyone should do, and he confined Stella’s actions to driving them to
a gas station afterwards); (RRIV-226-241) (Stella said there was no discussion of
what would happen, of where they would go, she begged Brooks not to go, she
confined her actions to driving away, but stating she saw no guns, did not hear
gunshots, and learned of the death the following day); (RRIV-278-285) (Rose stated
Stella left as a passenger in the car, Stella tried to convince Brooks not to go, they did
not discuss what would happen, she did not see any weapons in the car, and no one
talked of shooting or killing); see also TEX. PENAL CODE ANN. §7.02 (West 2011)
(defining under (a) that a person is criminally responsible when she “act[s] with the
intent to promote or assist in the commission of the offense” and she “solicits,
encourages, directs, aids, or attempts to aid the other person to commit the offense”
and defining under (b) “in the attempt to carry out a conspiracy to commit one felony,
another felony is committed by one of the conspirators, all conspirators are guilty of
the felony actually committed, though having no intent to commit it, if the offense
36
a. Stella was not an accomplice under Texas Penal Code Section 7.02(b)
It is important to note that the trial court did not instruct the jury on a 7.02(b)
theory of liability for appellant’s guilt or in the accomplice instructions.307 In
Zamora v. State, the jury instructions included the 7.02(b) coconspirator language
for the parties instruction, but not for the accomplice witness instructions.308 The
Court referenced Parades v. State to find error because the trial court in Parades
had instructed on the conspiracy aspect of parties law, and the defendant argued
accomplice-witness status under that theory.309
Appellant’s argument that Stella was a coconspirator as an accomplice under
7.02(b), was not the basis upon which the jury determined appellant’s guilt as a
party or the status of the accomplice witnesses.310 Only a theory of direct action as
the principal perpetrator and his soliciting, encouraging, directing, aiding or
attempting to aid while he had the requisite intent to promote or assist in the
was committed in furtherance of the unlawful purpose and was one that should have
been anticipated as a result of carrying out the conspiracy.”).
307
(CR-157-158,160).
308
Zamora, 411 S.W.3d at 508.
309
Id. (quoting Paredes, 129 S.W.3d at 538-39).
310
Compare (CR-157-158,160) with Zamora, 411 S.W.3d at 508-511 (addressing need
for a sua sponte instruction on accomplice witness as a matter of fact based on a
section 7.02(b) theory of the witness being a party); Paredes, 129 S.W.3d at 539
(addressing applicability of section 7.02(b) to determining party status but finding
there was no evidence the witnesses were conspirators in carrying out a felony when
the murders were committed).
37
commission of the murder were proffered as the theory of appellant’s party
liability.311
However, were this Court to consider section 7.02(b) to determine Stella’s
status, no evidence presented during trial indicated that she conspired to commit a
felony. All the evidence indicated that no discussion occurred in Brooks’ truck
about what would happen when they reached the house.312 No weapons were
visible in his truck.313 There was no talk of killing Saldana, and although Kazee,
Rose, and Stella thought that Saldana might be assaulted, the only discussion in the
car was about Brooks and appellant getting Saldana somewhere.314
Rose testified that she found out “after the fact” that they intended to beat
someone up.315 She assumed they meant to “kick [Saldana’s] ass[,]” but all she
heard in the car was “that they were going to get him somewhere.”316
Stella understood even less because Brooks did not mention his intent to
harm Saldana to her, and she thought he intended to “talk some shit maybe.”317
311
(CR-157-158, 160).
312
(RRIV-157-158,191,194,203,211-213,230,231, 234-235,245,246-247,279-283,293-
294).
313
(RRIV-196, 235, 247, 294).
314
(RRIV-194, 211-213, 247, 280, 282-283, 294).
315
(RRIV-280).
316
(RRIV-293-294).
317
(RRIV-245, 246
38
She had seen Brooks “talk a lot of shit.” But there was no plan to harm Saldana or
discussion that they would “do this or that[.]”318
Even Kazee did not indicate there was any sort of a plan or discussion of
what would follow. He understood they were going to beat Saldana up, but Brooks
had previously made known to all members of ABT that they should “take violent
action against” Saldana.319 Kazee did not hear any specific plans on what would
occur, and likely formed his understanding of Brooks’ intention to assault Saldana
on the past order.
Nothing in the record supports the conclusion that Stella was part of a
conspiracy to commit a felony, that the murder occurred in furtherance of that
felony, or that she should have anticipated that it would result from the conspired
felony.320
b. Stella was not an accomplice under Texas Penal Code Section 7.02(a)(2)
The record does not support the conclusion that Stella had the requisite
intent to promote or assist Brooks or appellant to commit the murder, or that she
solicited, encouraged, directed, aided, or attempted to aid Brooks or appellant to
commit the murder.321 On the contrary, she begged Brooks not to go meet with
318
(RRIV-245-247).
319
(RRIV-183-184, 185-186, 190, 191, 211-213).
320
See TEX. PENAL CODE ANN. §7.02(b) (West 2011).
321
See TEX. PENAL CODE ANN. §7.02(a) (West 2011).
39
Saldana.322 She clearly had no intention to promote or assist appellant or Brooks in
commit the murder.
The evidence does not indicate that Stella knew about the murder or had any
reason to believe that driving Brooks from the scene would assist Brooks and
appellant to commit the crime. Because the accomplice-witness statute does not
define the term accomplice, the Court of Criminal Appeals defined it “as someone
who, under the evidence, could have been charged with the same or a lesser-
included offense as that with which the defendant was charged.”323 Stella could
not have been found guilty under section 7.02(a)(2), and was not an accomplice.324
In Gross v. State, the Court of Criminal Appeals considered evidence of
post-offense behavior of someone alleged to have been a party, and found the
evidence insufficient.325 It held that post-offense conduct standing alone is not
sufficient to prove one’s guilt as a party. 326 Instead, to prove guilt, “[t]here must
also be sufficient evidence of an understanding or common scheme to commit a
crime.”327 The evidence in Gross was insufficient because the defendant could not
322
(RRIV-230, 245, 280).
323
Zamora, 411 S.W.3d at 510 (citing Medina v. State, 7 S.W.3d 633, 641
(Tex.Crim.App. 1999)).
324
See id.; see also Gross v. State, 380 S.W.3d 181, 186-88 (Tex.Crim.App. 2012)
(holding post-offense conduct standing alone is not enough to establish party status
under section 7.02).
325
Gross, 380 S.W.3d at
326
Id. at 188.
327
Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004)).
40
have anticipated that his passenger would shoot, he did not encouraged him to
shoot, and no evidence showed a “contemporaneous plan to shoot the victim[.]”328
Although the defendant drove the shooter away from the scene after he heard the
gunshot, the Court held that the evidence was insufficient to prove guilt as a party
to the murder.329
The evidence from all the witnesses established that Stella was not a part of
a plan to kill Saldana.330 Any plan existed solely between appellant and Brooks.
She could not have anticipated that the men would use guns, she did not seem them
take guns, and she did not hear a gunshot before she drove away.331 She did not
encourage Brooks to engage in the violent conduct and actively discouraged it.332
She was no guiltier as a party than Gross, and therefore was not an accomplice
under section 7.02(a)(2). The trial court did not err by failing to include Stella in
the accomplice-witness instructions.333
328
Id. at 187-88.
329
Id. at 183-184, 187-89.
330
(RRIV-157,158,191,194,203,211-213,230,231,234,235,245,246-247,279-283,293-
294).
331
(RRIV-196, 235, 236, 247, 294).
332
(RRIV-230, 245, 280).
333
See Gross, 380 S.W.3d at 187-189; see also Zamora, 411 S.W.3d at 510 (addressing
the definition of an accomplice-witness to include section 7.02(a)(2) parties).
41
III. Egregious harm did not result
Yet, even were this Court to consider the second prong of Almanza, it
considers whether egregious harm resulted because appellant did not object.334
The Court of Criminal Appeals applies the egregious harm standard to unpreserved
claims of accomplice-witness instructions.335 Even had the trial court erred by
failing to include an accomplice as a matter of fact instruction on Stella as “law
applicable to the case,” the error did not result in egregious harm.336
To determine whether the failure to instruct on the accomplice witness
would have caused jurors to find “the corroborating evidence so unconvincing in
fact as to render the State’s overall case for conviction clearly and significantly less
persuasive,” the reviewing court considers the record as a whole to determine
egregious harm, considering the strength of the corroborating evidence which is a
function of its: (1) reliability or believability; and, (2) how compellingly it tends to
connect the accused to the charged offense.337
In this case, there was a considerable amount of corroborating evidence
tending to connect appellant beyond Stella’s testimony. The physical evidence
corroborated the accomplices. Police recovered a bullet consistent with a nine-
334
See Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002);(RRVII-4).
335
Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991); Casanova v. State,
383 S.W.3d 530, 533 (Tex.Crim.App. 2012).
336
See id. et al.
337
Casanova, 383 S.W.3d at 534, 359.
42
millimeter and one consistent with a revolver, there were two shots fired by two
guns, and the angle at which the bullet entered the mattress was consistent with
Hourshad’s recollections of the events after the shooting.338
The text messages corroborated by Rose’s testimony connected appellant, as
well as Rose’s overhearing of the telephone call.339 Finally the ABT connection,
the gas station photographs, his flight from police, and the circumstantial evidence
connected appellant.340 The reliability of the independent corroborating evidence
in the form of photographs, physical evidence, and Rose’s testimony compellingly
connected appellant to the murder.
The Court of Criminal Appeals explained a missing accomplice-witness
instruction reviewed for egregious harm is generally harmless “unless the
corroborating (non-accomplice) evidence [was] ‘so unconvincing in fact as to
render the State’s overall case for conviction clearly and significantly less
persuasive.’”341 Only in a case where the evidence had a weak tendency to connect
the defendant to the crime and was contradicted by other evidence, did the error
338
Compare (State’s Exhibit No. 82-87, 118; RRIV-45, 56, 57; RRVI-85, 86, 91, 94, 95,
97, 98, 104, 168-172)(firearms evidence) with (RRIV-57-60)(Hourshad’s
recollections); (RRIV-137, 208)(descriptions of guns used).
339
(State’s Exhibit No. 2; RRIV-122-130, 278-282, 294).
340
(RRIV-115-118, 187-190, 193-194; State’s Exhibit No. 19-24).
341
Herron, 86 S.W.3d at 632.
43
rise to a level requiring reversal.342 In this case, no evidence contradicted the
physical evidence, surveillance photographs, or Rose’s testimony.
All things being equal, even on a “some harm” analysis, the non-accomplice
evidence would need to be stronger than in an egregious harm analysis.343
Reviewing courts also consider the tenuousness of the evidence supporting
accomplice-witness status along with the amount of non-accomplice evidence.344
The reliability inquiry is satisfied when: “(1) there is non-accomplice evidence,
and (2) there is no rational and articulable basis for disregarding the non-
accomplice evidence or finding that it fails to connect the defendant to the
offense.”345 The evidence that Stella acted as a willing participate in a pre-planned
murder or aggravated assault was non-existent and the corroborating evidence
strong.
In Medina v. State, the error was harmless under a “some harm” standard for
potential accomplices as a matter of fact.346 The Court of Criminal Appeals in
Medina found there was a substantial amount of non-accomplice evidence, and the
evidence of the witness’s accomplice status was tenuous “barely enough to support
342
Id.
343
Herron, 86 S.W.3d at 633.
344
Id.
345
Id.
346
Medina, 7 S.W.3d at 642.
44
the submission as an accomplice as a matter of fact” instruction. 347 Reviewing this
record as a whole, egregious harm did not result from the lack of an accomplice-
witness instruction on Stella Preece.348
IV. The jury charge correctly instructed on accomplice-witness law and applied
the facts to the law
The trial court’s charge included an application paragraph regarding the
accomplices.349 It instructed on accomplice-witness law generally, and then
instructed that: “The witnesses, Tara Cook and Joseph Kazee and Michael
Hourshad, are accomplices,…and you cannot convict the defendant upon their
testimony unless you further believe that there is other evidence in the case outside
of…[their] testimony…tending to connect the defendant with the offense
committed.”350 Appellant’s contention there is “no application paragraph in the
court’s accomplice charge” is inaccurate.351
No statutory or case law requires that the trial court include a separate
credibility requirement with an accomplice-witness instruction. “As a general
proposition, a jury charge that tracks the language of the relevant statute is
347
Herron, 86 S.W.3d at 633.
348
See id.
349
(CR-160-161).
350
(CR-160-161).
351
Compare (Appellant’s Brief-18) with (CR-160-161).
45
sufficient and therefore not erroneous.”352 In this case, the trial court’s accomplice
witness instruction properly tracked the language of article 38.14.353 The
additional instruction “unless the jury first believes that the accomplice evidence is
true” does not appear in article 38.14, and appellant provides not authority that
required its inclusion.354
The charge instructed on the burden of proof, that one accomplice could not
provide corroboration for another, and that the jury was the sole judge of the
credibility of the witnesses, but ordered that the trial court’s instructions govern the
jury.355 The instructions accurately relayed the law applicable to the case.
In reference to appellant’s separate complaint that the accomplice-witness
instructions were confusing and permitted the jury to convict appellant before
assessing the accomplice-witness testimony, the jury charge is read as a whole.356
The jury may consider the parts in the order it chooses, and the charge is not
352
Hernandez v. State, 340 S.W.3d 55, 61 (Tex.App.—Houston [1st Dist.] 2011, no pet.)
(citations omitted).
353
Compare (CR-160-161) with TEX. CODE CRIM. P. ANN. art. 38.14 (West 2006)).
354
See (Appellant’s Brief-20-23) (citing McClungs for proposition that a separate
credibility instruction was required); but see TEX. CRIM. P. CODE ANN. art. 38.14
(West 2006); (CR-161, 167).
355
(CR-161, 166-167).
356
See Barrios v. State, 283 S.W.3d 348, 352 (Tex.Crim.App. 2009) (holding the jury is
left to consider the parts of the charge in the order they choose and that the charge
must be considered as a whole).
46
erroneous merely because it might be better practice to order it differently.357
Appellant provides no authority to indicate the trial court erroneously ordered the
charge, or that the jury did not consider the charge as a whole before reaching its
verdict.358 Appellant has not established charge error, much less egregious harm.
Appellant’s second point of error must be overruled.
REPLY TO APPELLANT’S THIRD AND SIXTH POINTS OF ERROR
Appellant’s third and sixth points of error address comments the prosecutor
made during closing statement, some in guilt and one in punishment.359 He
complains about various statements made during the guilty phase argument, and
about a comment in punishment closing that he contends violated his right to
remain silent. Appellant waived error or did not preserve it to most of his
complaints. He cannot show error to the others, and even could he, no harm
resulted.
357
See id. (holding the practice of including “will acquit…and next consider” in the
lesser-included offenses instructions was not erroneous when the charge was
considered as a whole).
358
See id. (“The trial judge reads the entire charge to the jury before it retires to
deliberate; the jurors will thereby have heard the instruction on the benefit of the
doubt before considering the issue of guilt on any of the offenses included in the
charge.”).
359
The State joins its responses on the third and sixth points because they address closing
argument.
47
I. The standard of review and applicable law
The primary purpose of closing argument is to aid and assist jurors in
properly analyzing the evidence to arrive at a just and reasonable conclusion.360
Permissible jury argument falls within one of four areas: (1) summation of the
evidence; (2) reasonable deductions from the evidence; (3) response to argument
by opposing counsel; and (4) pleas for law enforcement.361
The prosecutor may not inject any prejudicial or incriminating facts not in
the record that would mandate a reversal.362 But “[i]f defense counsel invites
argument, then it is appropriate for the State to respond.”363 The State may not
stray beyond the scope of the invitation.364
II. The closing arguments
a. Guilt Phase
Appellant invoked Saldana’s family during closing argument saying they
“deserved better….[b]etter police work, better presentation of this mishmash of
evidence[.]”365 He attacked Kazee, Brown, Hourshad, Stella and Rose.366 He
argued that the non-accomplice evidence failed to corroborate appellant’s
360
Dickinson v. State, 685 S.W.2d 320, 322 (Tex.Crim.App. 1984).
361
Bonier v. State, 738 S.W.2d 726, 730 (Tex.App.—Houston [14th Dist.] 1989, no pet.).
362
Id.
363
Soto v. State, 864 S.W.2d 687, 693 (Tex.App.—Houston [14th Dist.] 1993, pet. ref’d).
364
Johnson v. State, 611 S.W.2d 649, 650 (Tex.Crim.App. [Panel Op.] 1981).
365
(RRVII-33).
366
(RRVII-16-24,26).
48
participation.367 He claimed that he was not trying to be mean to the investigator
during cross but had to show she did not know her case.368
The State responded with the non-accomplice evidence connecting appellant
to the crime.369 On credibility, the prosecutor mentioned without objection that
“when every single one of them walked in this court and took that witness stand,
they put a target on their back….The Aryan Brotherhood of Texas doesn’t send
you flowers when you testify against them.”370 Without objection the prosecutor
stated that Kazee was “as good as dead.” From his demeanor they could see that
“he [was] a marked man.” Roy Ates admitted that Kazee had been “X’d out” by
ABT.371
On Miller’s credibility the prosecutor noted, “…Miller was forced to admit
that apparently, whenever anyone in the Aryan Brotherhood commits a murder—
and he told you about Greg Gammon—he just happens to show up and says the
person didn’t intent to commit the crime.”372 Defense counsel objected “outside
the evidence[,]”the trial court overruled, and reminded the jury to recall the
367
(RRVII-22-24).
368
(RRVII-28).
369
(RRVII-47-48).
370
(RRVII-49).
371
(RRVII-50).
372
(RRVII-54).
49
evidence.373 The prosecutor then argued without objection that Miller admitted he
was present for another ABT murder.374 “That’s what they do. They show up and
they vouch for each other.”375
Addressing Ates’ credibility, the prosecutor argued that his first version
blamed Christina and Nicole.376 Trial counsel objected that the comment was
outside the evidence, the trial court overruled, and reminded the jury to recall the
evidence.377 The prosecutor argued without objection that Ates’ story changed, he
needed a new story, and he offered the same story as Miller.378
The prosecutor discussed the Saldana family and the investigator’s work on
the case.379 She said, “unless you’ve gone into a living room and promised a
family when their family member is dead that you will do everything[.]” 380
Defense counsel objected to outside the evidence, but the trial court overruled the
objection.381 She continued without objection, “Until you have gone into a
family’s living room and until you have prayed with them for justice, you will
never know what that promise is like and the cross that she has beared (sic).”
373
(RRVII-54).
374
(RRIV-54).
375
(RRVII-54).
376
(RRVII-55-56).
377
(RRVII-56).
378
(RRVII-56-57).
379
(RRVII-60).
380
(RRVII-60).
381
(RRVII-60).
50
The prosecutor noted without objection that appellant’s counsel mocked
Stella and Rose.382 The defense witnesses were also derogatory about the
women.383 The defense posed no objections to these arguments.384 Regarding the
investigator’s cross she asked jurors to “think back, [she] took this witness stand
and opposing counsel was extremely derogatory and rude and stood up here in the
corner and tried to get in her face and bully her until the judge....”385 Trial counsel
objected that the State was “striking counsel over the shoulder of the defendant.”386
The trial judge overruled the objection, counsel objected to improper argument,
and moved for a mistrial, but the trial court denied the requests.387 The prosecutor
continued without objection that he “[s]tood right there up in her face, didn’t get
her rattled. And she admitted to the mistakes that she made.”388
After arguing regarding ABT was the motive she said:
They’ve always known all of these people were in the
Aryan Brotherhood of Texas. And let’s talk about that,
because you would have to be blind, deaf, and dumb not
to notice all the people that have come in and out of this
courtroom for the last week. If you don’t thinking they
382
(RRVII-57-58).
383
(RRVII-58).
384
(RRVII-57-58).
385
(RRVII-62).
386
(RRVII-62).
387
(RRVII-63).
388
(RRVII-63).
51
were watching the people that testified and making a note
of where—389
The defense objected “outside the evidence,” the judge overruled, and reminded
the jury they would recall the evidence.390 The prosecutor continued for another
paragraph without objection about the witnesses fear stating she did not ask for
home addresses because they were scared.391
b. Punishment Phase
In the punishment phase argument, the State highlighted the jury’s power to
do justice for the Saldana family and hold appellant responsible.392 None of the
evidence should cause them to show appellant mercy, as his sister had wanted
them to do.393 Although his family’s claimed he had a rough childhood, “We’ve
all been dealt bad things. None of the rest of us committed murder. They asked
for mercy because mercy is about me. He’s never taken any responsibility. Never
once has he come in here and said what his role is.”394 The defense objected to an
improper comment on the Fifth Amendment.395 The trial judge overruled the
389
(RRVII-64-65).
390
(RRVII-65).
391
(RRVII-65).
392
(RRIX-28).
393
(RRIX-28-29).
394
(RRIX-29).
395
(RRIX-29).
52
objection.396 The prosecutor did not return to it, but followed with their verdict
would hold appellant responsible.397
III. Appellant waived error to all of his guilt phase complaints
A defendant must objection each time the improper jury argument is made
or he waives his complaint regardless of how egregious the argument.398 In each of
appellant’s guilt phase complaints, he either failed to object or he failed to object
each time the prosecutor made the argument.
When the prosecutor commented on Miller showing up in other cases to say
the person lacked intent he objected, but the prosecutor continued the argument
without further objection.399 He waived this error.400 On the Roy Ates argument
about his changing his story, she again continued the argument without further
objection.401 Appellant waived error.402
On the argument that the jury did not know what it was like to promise a
family that you would do everything, after the objection the prosecutor continued
the argument without another objection and commented about the investigator
396
(RRIX-29).
397
(RRIX-29).
398
Temple v. State, 342 S.W.3d 572, 603 (Tex.App.—Houston [14th Dist.] 2010), aff’d
on other grounds 390 S.W.3d 341 (Tex.Crim.App. 2013).
399
(RRVI-54).
400
Temple, 342 S.W.3d at 603.
401
(RRVII-56-57).
402
Temple, 342 S.W.3d at 603.
53
having “prayed with them for justice.”403 Because appellant did not object, he
waived error.404
Appellant’s complaints about defense counsel acting derogatory and rude to
the investigator went on without another objection that he “stood right there…in
her face[.]”405 Appellant waived error.406
Appellant did not object to the comment about not asking for home
addresses.407 He objected to an earlier comment about audience intimidation.408
He did not renew the objection despite the lengthy argument continuing.409
Appellant waived error to all of his guilt phase closing complaints by failing
to object or renewing his objections in the trial court, and this Court should not
reach the merits of those claims.410
IV. Most of the prosecutor’s guilty phase arguments were within the scope of
proper summation
Yet, had appellant preserved error, the comments were within the bounds of
legitimate argument. First, Miller testified that he knew Greg Gammon, that he did
not know that Gammon was a documented ABT member, and that he gave a
403
(RRVII-60).
404
Temple, 342 S.W.3d at 603.
405
(RRVII-62-63).
406
Temple, 342 S.W.3d at 603.
407
(RRVII-65).
408
(RRVII-65).
409
(RRVII-65-66).
410
Temple, 342 S.W.3d at 603.
54
statement in the Gammon murder case even though he was “not there at the actual
scene” or “around there” during it.411 The prosecutor’s use of hyperbole is not
erroneous when it is a reasonable deduction from the evidence, and jurors are
capable of understanding rhetorical hyperbole.412 The prosecutor’s argument that
Miller shows up and “says the person didn’t intend to commit the crime” when
someone in ABT commits murder was hyperbole based on a reasonable deduction
from the evidence.413
Second, the argument that the investigator never quit on the case because she
promised the Saldana family justice was a reasonable inference from the
testimony.414 The jury learned that the investigator worked for more than a year to
charge appellant and Brooks.415 The comment formed a plea for law enforcement,
a permissible area of jury argument. Appellant also invited it after his invocation
of the Saldana family to claim they “deserved better” than the investigation the
investigator conducted.416
411
(RRVI-249-250, 252
412
Erlandson v. State, 763 S.W.2d 845, 855 (Tex.App.—Houston [14th Dist.] 1988, pet.
ref’d) (“Jurors are quite capable of sifting through such hyperbolic tactics.”).
413
See id.; compare (RRVI-249-252) with (RRVII-54).
414
Compare (RRIV-147-168) with (RRVII-60).
415
(RRVI-147-174).
416
Compare (RRVII-33-34) with (RRVII-60-61).
55
Third, audience intimidation of witnesses was a reasonable inference from
the evidence. Ates admitted that Kazee had been “X’d out.”417 The FBI Agent
testified that any ABT member cooperating with law enforcement could be
punished with murder.418 The evidence supported the reasonable inference that
testifying placed the State’s witnesses in danger. The record showed the
prosecutor had not asked any of the witnesses their addresses. 419 The argument
was a reasonable deduction from the evidence.
Fourth, the prosecutor’s comment about defense counsel bullying was
invited by his claim that he did not intent to be mean to the investigator.420
V. No harm resulted closing argument
a. Guilty Phase
Yet, even had all of the comments been improper, they were harmless
because they did not cause substantial and injurious harm. Even had the trial court
erred by failing to sustain the objections, it does not require reversal.421 The
comments created no risk that the jury would convict on facts not in evidence.422
They did not raise any constitutional implications, and are reviewed for harm under
417
(RRVI-227).
418
(RRIV-304-306, 308-309, 310, 311, 314).
419
(RRIV-30, 101, 175-176, 223, 271).
420
See (RRVII-28).
421
See Paolilla v. State, 342 S.W.3d 783, 794-95 (Tex.App.—Houston [14th Dist.] 2011,
pet. ref’d).
422
See id. at 795.
56
appellate rule 44.2(b).423 This Court must balance the severity of the misconduct in
terms of the prejudicial effect, any curative measures taken, and the certainty of
conviction absent it.424
The comments were not severe. They were unlikely to create a prejudicial
effect that would have shifted the jury from a not guilty to a guilty verdict.
Although the judge overruled the objections, she reminded the jury multiple times
to “recall the evidence.”425 The arguments did not exaggerate or strengthen the
non-accomplice evidence. Rather, they questioned the credibility of the defense
witnesses and pointed to the efforts made by the investigator.426 Nothing in any of
the guilt phase arguments would have made the State’s case significantly more
persuasive. Even if erroneous, they were harmless.
b. Punishment Phase
Lastly, the prosecutor’s punishment phase closing argument would not have
been taken as a direct comment on appellant’s failure to testify, and it did not harm
appellant. To violate the right against self-incrimination, the offending language
must be viewed from the jury’s standpoint and the implication that the comment
423
Zunker v. State, 177 S.W.3d 72, 84 (Tex.App.—Houston [1st Dist.] 2005, pet. ref’d);
see also TEX. R. APP. P. 44.2(b).
424
Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).
425
(RRVII-54, 56, 65,
426
See Schultze v. State, 177 S.W.3d 26, 45 (Tex.App.—Houston [1st Dist.] 2005, pet.
ref’d) (holding comment regarding effect of crime on victim’s parents was outside the
record, but harmless because if did not convey specific facts).
57
referred to the defendant's failure to testify must be clear.427 It is not sufficient that
the language might be construed as an implied or indirect allusion. 428 The test is
whether the language was manifestly intended or of such a character that the jury
would necessarily and naturally take it as a comment on the defendant’s failure to
testify.429 In applying this standard, the context in which the comment was made
must be analyzed to determine the character.430
The initial comment that appellant had “never taken any responsibility” did
not directly implicate his failure to testify.431 Although, she then eluded to “come
in here,” which could have been taken to refer to the courtroom, it would not
necessarily and naturally have been taken by the jury as a comment on the
defendant’s failure to testify.432 Yet, even had it, when reviewing the record as a
whole, this Court has fair assurance that the error did not contribute to appellant’s
sentence.433
This Court considers under Snowden v. State: (1) the nature of the error,
namely objectionable jury argument; (2) whether it was emphasized by the State;
427
Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001).
428
Id.
429
Id.
430
Id.
431
(RRIX-29).
432
See Bustamante, 48 S.W.3d at 764.
433
See Snowden v. State, 353 S.W.3d 815, 821-22 (Tex.Crim.App. 2011) (“The harmless-
error inquiry under Rule 44.2(a) should adhere strictly to the question of whether the
error committed in a particular case contributed to the verdict obtained in that case.”)
58
(3) the probable implications of the error; and (4) the weight jurors would have
assigned to it during deliberations.434 The prosecutor did not emphatically invite
the jury to consider appellant’s failure to testify.435 After the one brief comment,
she did not return to the topic other than to ask jurors to hold appellant responsible
with their verdict.436 She did not emphasize the comment, and it was not likely to
have swayed the punishment verdict. When faced with a sentencing range of 25
years to life, the jury returned the low-end sentence of 35 years.437 Reviewing the
record as whole, this Court should find beyond a reasonable doubt that the
prosecutor’s comments did not contribute to the sentence.438
This Court should overrule appellant’s third and sixth points of error.
REPLY TO APPELLANT’S FOURTH POINT OF ERROR
Appellant next complains about Brown’s testimony that appellant was “in an
out of prison.”439 But the trial court cured the comment with an instruction to
disregard, and the jury heard the same evidence later without objection.
434
Id. at 822.
435
See (RRIX-29-30).
436
(RRIX-29-30).
437
(CR-174, 182).
438
See id.; see also Snowden, 353 S.W.3d at 822-826.
439
(Appellant’s Brief-27).
59
I. Testimony that appellant had been in prison
During Brown’s testimony, she explained that she and appellant “we would
be together and he would get in trouble or going in and out of prison and he’d get
out and get back together.”440 Defense counsel objected, the trial court initially
overruled the objection, but it nevertheless instructed “[j]ury will disregard the last
statement.”441 Ates later admitted members had to go to prison to be ABT.442
II. The instruction and Ate’s testimony cured the error
A trial court’s prompt instruction to disregard generally cures error to a
witness’s reference to the defendant’s past conviction.443 An “uninvited and
unembellished reference to appellant’s prior incarceration—although
inadmissible—was not so inflammatory as to undermine the efficacy of the trial
court’s instruction to disregard.”444 Instructions to disregard generally cure
improprieties that occur during trial because courts presume that the jury will
follow them.445
440
(RRIV-102).
441
(RRIV-103).
442
(RRVI-286).
443
See Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) (“It is well-settled that
testimony referring to or implying extraneous offense can be rendered harmless by an
instruction to disregard…unless it appears the evidence was so clearly calculated to
inflame the minds of the jury or is of such damning character as to suggest it would be
impossible to remove the harmful impression from the jury’s mind.”).
444
Id.
445
See Gamboa v. State, 296 S.W.3d 574, 581 (Tex.Crim.App. 2009)(holding instruction
to disregard of extraneous offense cured error).
60
In this case, the prosecutor did not elicit the testimony, but asked only “was
he someone that you would occasionally date?”446 She did not request appellant’s
prison background, the witness volunteered it.447 The trial judge promptly
instructed the jury to disregard.448 There is no reason to believe the jury did not
follow the court’s instruction.449 The comment was not so inflammatory as to
undermine efficacy of the trial court’s instruction.
Likewise, the jury heard the same evidence without objection from Ates
which cured the error.450 Ates’ testimony one had to go to prison to be ABT, along
with evidence of appellant’s documented-status as ABT established his prison
record. The jury heard the same evidence curing error.451 This Court should
overrule appellant’s fourth point of error.
REPLY TO APPELLANT’S FIFTH POINT OF ERROR
Appellant’s fifth point of error accused the State of a willful discovery
violation and claimed the trial court refused counsel access to Brown’s recorded
446
(RRIV-102).
447
Id.
448
(RRIV-103).
449
See Gamboa, 296 S.W.3d at 581.
450
See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998).
451
See id.; see also Kemp, 846 S.W.2d at 30.
61
statement.452 The record refutes appellant’s claims and he has not established a
Brady violation.
I. The record does not support appellant’s claims
At the end of Brown’s testimony, she was released subject to recall by
defense counsel.453 During the investigator’s testimony, defense counsel asked
about the three statement police took from Brown.454 The investigator testified she
recorded the third interview with Brown.455 Defense counsel was told by “the
previous prosecutor that this third recording did not exist,” learning it did he
wanted to hear it.456 The prosecutor did not know about the recording, and said she
would have to get a copy.457 Because the State did not have it, the judge instructed
counsel to continue his cross.458
At the conclusion of the investigator’s testimony, trial counsel again
requested the recording, but he agreed the witness could be excused and he would
proceed with his case.459 At the conclusion of his evidence, counsel stated he
needed to listen to the recording to decide whether to recall Brown or the
452
(Appellant’s Brief-30).
453
(RRIV-174).
454
(RRVI-190-191).
455
(RRVI-191).
456
(RRVI-191).
457
(RRVI-191).
458
(RRVI-192).
459
(RRVI-220-221).
62
investigator.460 The trial broke for the day, presumably for the State to obtain the
recording and defense counsel to listen to it.461 The following day, he rested
without presenting any additional witnesses.462 Trial counsel made no further
mention of the recording, he did not object to a failure of the State to procure it, or
to an inability for him to review it. Presumably, when he rested after the break he
had listened to the tape and found nothing to pursue from it.463 He did not raise the
issue again before he rested.
Trial counsel made no Brady objection during the trial. He did not claim
unfair surprise, and he did not pursue a defense from the recording. The record
does not support appellant’s claims regarding a “willful” discovery violation or a
failure to permit inspection during trial.464
II. Appellant’s misplaces his reliance on Oprean v. State
Appellant relies exclusively on Oprean v. State for the proposition that the
trial court erred.465 First, appellant’s claims inaccurately reflect that counsel never
heard the recording during the break conducted for counsel to review it.466
460
(RRVI-289-290).
461
(RRVI-290).
462
(RRVII-4).
463
See (RRVI-289-290; RRIV-4).
464
Compare id. with (Appellant’s Brief-30-32) (claiming the trial court refused to release
statement and that the State willfully hid the recording).
465
(Appellant’s Brief-31-33) (citing Oprean v. State, 201 S.W.3d 724 (Tex.Crim.App.
2006)).
466
Id.
63
Second, trial counsel and the prosecutor’s comments indicate she did not have a
copy of the recording and did not know about it.467 The investigator dealt with
“several different DAs” while she worked on the case indicating she gave it to
someone else.468
Appellant’s reliance on Oprean is misplaced. In Oprean, the trial court
admitted a recording over defense objection that had not been released during
discovery.469 The Court held that evidence “willfully withheld from disclosure
under a discovery order should be excluded from evidence.”470 No evidence was
introduced in this case counsel could have moved to suppress on this basis.
Oprean addressed a deliberate failure to comply and focused on the “willful
choice” of a prosecutor. It held that the prosecutor’s deliberate deception and
decision not to disclose evidence she intended to present demonstrated willful
conduct.471 This record contains no similar evidence of deception or willful
conduct. Rather, consistent with State v. LaRue, the prosecutor did not willfully
467
(RRIV-191-192).
468
(RRVI-192).
469
Oprean, 201 S.W.3d at 725.
470
Id.
471
Id. at 727-28.
64
attempt to keep the recording from defense counsel, but was also unaware of it.472
This Court should overrule appellant’s fifth point of error.
REPLY TO APPELLANT’S SEVENTH POINT OF ERROR
Appellant complains in his seventh point about the “read back” testimony
the trial court provided to the jury in answer to its question as overbroad. But the
trial court included only testimony responsive to the question and necessary to put
it in context.
I. The jury’s requests and the testimony read back
During deliberations, the jury noted on a preprinted form that it disagreed
about the statements of Stella, certified its disagreement, stated the point of
dispute, and requested in Stella testimony about how she identified appellant as
Brooks’ caller.473 The trial court listed the portions it planned to read, but the
defense objected to part of the read back referencing a second phone call, but the
State argued it showed how Stella identified appellant initially.474 The trial court
read that portion, as well.475
472
(RRVI-191-192); Compare id. with State v. LaRue, 152 S.W.3d 95 (Tex.Crim.App.
2004) (holding failure to produce DNA evidence was not “willful” and therefore not
entitled to suppression).
473
(CR-154, 155).
474
(RRVII-68-69).
475
(RRVII-70-71).
65
II. The read back testimony was responsive to the jury’s question
Texas Code of Criminal Procedure Article 36.28 permits the trial court to
have read to the jury from the court reporter’s notes the part of a witness’s
testimony addressing the dispute when the jurors disagree about the witness’s
statement.476 When a dispute occurs, “the trial court must interpret the
communication, decide what portion of the testimony best answers the question,
and limit the testimony accordingly.”477 A reviewing court does not disturb the
trial court’s ruling absent an abuse of discretion.478
In Brown v. State, the Court of Criminal Appeals considered a claim that the
trial court exceeded the topic of the jury’s dispute in its read back.479 The Court
looked to the scope of the juror’s question and determined it was broad enough to
encompass the testimony.480 Based on the question, the trial court correctly placed
the answer in context with several passages regarding who was in the area because
“the trial court correctly reasoned that the entire testimony between that first
question and the last response was necessary…in response to their question[.]”481
476
TEX. CODE CRIM. P. ANN. art. 36.28 (West 2006).
477
Neal v. State, 108 S.W.3d 577, 579 (Tex.App.—Amarillo 2003, no pet.) (citing Brown
v. State, 870 S.W.2d 53, 55 (Tex.Crim.App. 1994)).
478
Brown, 870 S.W.2d at 55.
479
Brown, 870 S.W.2d at 55-56.
480
Id. at 55-56.
481
Id. at 56.
66
To excise the intermediate portions “would have added more confusion rather than
resolved the jury’s question.”482
Similarly, the question was how Stella identified appellant on the call.483
The entire portion of the testimony read back addressed the answer to that
question.484 Part of how Stella identified appellant as the caller was through the
subsequent calls.485 The trial judge did not abuse her discretion by reading back all
the relevant testimony.486 And the court would not have erred even had the
testimony only been necessary context to the answer.487 This Court should
overrule appellant’s seventh point of error.
REPLY TO APPELLANT’S EIGHTH POINT OF ERROR
Appellant’s eighth point of error complains that the trial court improperly
allowed the jury to consider the enhancement paragraphs when the State had not
arraigned him on them. The record is silent as to the trial court arraigning
appellant on the enhancement paragraphs and obtaining his plea. The reading of
the enhancement paragraphs at the punishment phase of trial and obtaining of his
482
Id.
483
(CR-154).
484
(RRVII-70-71).
485
See (RRVII-70-71).
486
See Brown, 870 S.W.2d at 55-56.
487
See id. at 56.
67
plea is mandatory.488 Appellant objected before punishment closing argument, and
the trial court overruled the objection but entered “not true” pleas on his behalf.489
The jury instructions allowed for the jury to consider both enhancement paragraphs
and it found them true.490
Because a violation of article 36.01 is not structural in nature, it is subject to
harmless error analysis for non-constitutional harm.491 As this Court concluded in
Linton v. State, appellant did not suffer a substantial or injurious effect from the
failure to arraign him when he did not incriminate himself, he did not take the
stand, and the evidence of his prior convictions was unchallenged. 492 Nothing in
the record would indicate that appellant was “misled into believing the State
abandoned the enhancement allegations” or cause him to incriminate himself.493
The failure to formally arraign appellant did not cause a substantial or injurious
effect on the punishment verdict.494
488
TEX. CODE CRIM. P. ANN. art. 36.01(a) (West 2006).
489
(RRIX-4).
490
(CR-182).
491
Linton v. State, 15 S.W.3d 615, 620-21 (Tex.App.—Houston [1st Dist.] 2000, pet.
ref’d) (citing Tex. R. App. P. 44.2(b); Aguirre-Mata v. State, 992 S.W.2d 495, 498
(Tex.Crim.App. 1999)).
492
Compare Linton, 15 S.W.3d at 621 (no harm from failure to arraign on enhancement
paragraphs) with (RRVIII-7-18, 33-58) (evidence of priors and defense evidence did
not incriminate appellant).
493
See id.
494
See id.; see also Mitchell v. State, No. 01-09-00865-CR, 2011 WL 1755424, at *5
(Tex.App.—Houston [1st Dist.] 2011, pet. ref’d)(not designated for publication) (not
harmed by failure to arraign on enhancements).
68
REPLY TO APPELLANT’S NINTH POINT OF ERROR
In his ninth point of error, appellant includes three claims of ineffective
assistance of counsel. Neither the law nor the facts support them.
I. The standard of review and applicable law
Appellant has the burden of proving his trial counsel ineffective. 495 The two
prong test requires proof that: (1) that counsel’s performance was so deficient that
he was not functioning as acceptable counsel under the Sixth Amendment; and (2)
that there is a reasonable probability but for counsel’s error, the result of the
proceedings would have been different.496
II. Trial Counsel did not perform deficiently and his actions did not result in
prejudice which undermined confidence in the outcome
a. The jury charge was not erroneous
As demonstrated in the State’s response to appellant’s second point of error,
the jury charge properly relayed the law of the case. The State relies on its
previous arguments to show that trial counsel was not deficient for failing to
request an accomplice-witness instruction on Stella because no view of the record
showed her as a party to murder. Likewise, no law required the trial court to order
the charge as appellant now requests. Read as a whole the trial court would have
495
Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).
496
Strickland v. Washington, 466 U.S. 668, 687 (1984).
69
properly overruled trial counsel’s request to reorder it. Appellant has not carried
the heavy burden of proving deficient conduct for either claim.
b. Trial counsel repeatedly objected to the gang evidence
On appellant’s final claim, trial counsel repeatedly objected to the gang
evidence. Before trial he objected to the State identifying the parties based on
ABT titles.497 During Brown’s testimony, trial counsel objected to testimony about
gang connection.498 Before eliciting ABT evidence, the State received permission
from the court because the evidence was relevant and showed motive in the face of
counsel’s extraneous offense objection.499 During Kazee’s testimony the trial court
conducted a hearing to address admissibility of the gang evidence, defense counsel
objected to relevance, but the trial court overruled it.500 He reurged the objection
during testimony.501
Trial counsel is not deficient for failing to lodge an objection unless the trial
court would have erred by overruling it.502 Gang evidence when used to establish
motive is relevant and admissible over a rule 404(b) objection, and not unduly
prejudicial because the “potential character conformity inference does not
497
(RRIV-9-10).
498
(RRIV-52).
499
(RRIV-112-113).
500
(RRIV-186-187).
501
(RRIV-190, 256-260).
502
Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004).
70
substantially outweigh the relevant purpose of showing motive for
the…murder.”503 Even had trial counsel objected under rule 403 and continued to
object to every reference to ABT under rule 404, the trial court would not have
abused its discretion in overruling the objections because membership in ABT
established appellant’s motive.504 This Court must overrule appellant’s ninth point
of error.
REPLY TO APPELLANT’S TENTH POINT OF ERROR
In his final point of error, appellant claims the trial court erred by admitting
an extraneous offense accusation against Miller and Brooks. Appellant waived
error to Miller’s cross and did not object to the question about Brooks committing
other murders. That testimony benefited his defense strategy.
I. Failure to request instruction to disregard waived error to Miller complaint
The State asked Miller about Greg Gammon.505 The prosecutor mentioned
the 2012 murder, and trial counsel objected that the evidence was irrelevant, and
“also impeachment with some kind of extraneous offense.”506 At the end of the
503
Vasquez v. State, 67 S.W.3d 229, 239-40 (Tex.Crim.App. 2002) (trial court did not err
to admit gang evidence when motive for robbery and murder despite claims it violated
rules 401, 402, 403, and 404); see also Medina, 7 S.W.3d at 643 (evidence of gang
membership and rivalries relevant despite rule 401, 403, and 404 complaints when
established motive).
504
See id.; Medina, 7 S.W.3d at 643.
505
(RRVI-249).
506
(RRVI-250).
71
bench conference, the trial judge sustained the objection “with regard to going any
further into the facts of that case or his testimony in that case.”507
The State asked if he had been a witness in the Gammon murder case, but
Miller denied being aware anyone was murdered and denied being present for it.508
Trial counsel renewed his relevancy objection, the trial court sustained it, and the
prosecutor moved on to the witness’s testimony about appellant.509 The trial court
sustained appellant’s objections, and he sought no further relief.
To preserve error to a sustained objection, appellant must then move to
instruct the jury to disregard or for a mistrial, but when the trial court gets the relief
requested, and the testimony could have been cured with an instruction to
disregard, appellant waives error by not seeking the instruction.510 The evidence
did not implicate the witness in the murder, but instead explained he was a witness.
Even had the testimony been improper an instruction to disregard would have
cured it.511
507
(RRVI-252).
508
(RRVI-252).
509
(RRVI-252-253).
510
See Cureton v. State, 800 S.W.2d 259, 261 (Tex.App.—Houston [14th Dist.] 1990, no
pet.); see also Doherty v. State, 892 S.W.2d 13, 19 (Tex.App.—Houston [1st Dist.]
1994, pet. ref’d) (appellant must timely object, request an instruction to disregard and
request a mistrial to preserve error when an instruction would have been sufficient to
cure error).
511
See id.; see also Doherty, 892 S.W.2d at 19.
72
II. The Vernon Brooks complaint was unpreserved
Appellant last complains that the trial court permitted the State to ask Miller
if he would be surprised to learn Brooks was under investigation for multiple
murders.512 Appellant did not object to the testimony because his defense was to
blame Saldana’s murder on Brooks.513 Failure to object waives error.514
This Court must overrule appellant’s tenth point of error because he did not
preserve it.
512
(RRVII-259; Appellant’s Brief-45-46).
513
(RRVII-259); see also (RRVII-15-16, 20, 23-24, 27-30, 32-33).
514
Tex. R. App. P. 33.1(a); see also Arana v. State, 1 S.W.3d 824, 829 (Tex.App.—
Houston [14th Dist.] 1999, pet. ref’d) (party opposing evidence has burden to object
to impeachment evidence or he waives error).
73
PRAYER
The State respectfully requests that this Court affirm the trial court’s
judgment.
DEVON ANDERSON
District Attorney
Harris County, Texas
/s/ Jessica Caird
JESSICA CAIRD
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 274-5826
State Bar Number: 24000608
caird_jessica@dao.hctx.net
74
CERTIFICATE OF SERVICE
I certify that I have requested that efile.txcourts.gov electronically serve a
copy of the foregoing instrument to appellant’s attorney at the following email
address on November 11, 2015:
Lana Gordon
Attorney at Law
3730 Kirby, Suite 1120
Houston, Texas 77098
lanagordonlaw@aol.com
/s/ Jessica Caird
JESSICA CAIRD
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002
(713) 274-5826
State Bar Number: 24000608
caird_jessica@dao.hctx.net
75
CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document
has a word count of 14,533 words, based upon the representation provided by the
word processing program that was used to create the document.
/s/ Jessica Caird
JESSICA CAIRD
Assistant District Attorney
Harris County, Texas
1201 Franklin, Suite 600
Houston, Texas 77002-1923
(713) 274-5826
TBC No. 24000608
caird_jessica@dao.hctx.net
76