Chiron Sharrol Francis v. State ( 2019 )

Affirmed as Modified and Memorandum Opinion filed October 29, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00958-CR
CHIRON SHARROL FRANCIS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 268th District Court
Fort Bend County, Texas
Trial Court Cause No. 14-DCR-066778
MEMORANDUM OPINION
A jury found appellant Chiron Sharrol Francis guilty of two counts of murder.
The jury assessed punishment for each conviction at confinement for seventy-five
years and a fine of $5,000. The trial court ordered the sentences to run consecutively.
Following the denial of appellant’s motion for new trial, this timely appeal ensued.
We affirm each count as to eleven of the twelve issues asserted by appellant. We
overrule in part and sustain in part appellant’s tenth issue as to both counts, modify
the trial court’s judgment in both counts to reflect appellant’s sentences are to be
served concurrently, and as to both counts affirm the judgments as modified.
BACKGROUND
Appellant was charged with intentionally and knowingly causing the death of
Eric L. Heidbreder by shooting him with a deadly weapon, a firearm (count 1).
Appellant also was charged with intentionally and knowingly causing the death of
Douglas H. Schwartz by shooting him with a deadly weapon, a firearm (count 2).1
Both shootings occurred on April 11, 1994, in Fort Bend County, Texas. Appellant
left the country in May 1994. In August 1994, an arrest warrant was issued for
appellant. Appellant was detained in Caracas, Venezuela, sometime before June 16,
2014. In July 2014, appellant was charged with both murders, and in November of
2014, an application for extradition was submitted to Venezuelan authorities.
Appellant was extradited in June 2015 and indicted for both homicides. Trial began
in the fall of 2017, after multiple pretrial hearings were held in 2016 and 2017.
CLAIM OF INSUFFICIENT EVIDENCE
Because appellant’s ninth issue, if sustained, would afford the greatest relief,
we address it first. In his ninth issue appellant contends the evidence is insufficient
to support the jury’s verdict on both counts. Although appellant also challenges
factual sufficiency of the evidence, we only address whether the evidence is legally
sufficient. See Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).
1
See Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 19.02, 1973 Tex. Gen. Laws
883, 913, amended by Act of May 28, 1973, 63d Leg., R.S., ch. 426, art. 2, § 1, sec. 19.02, 1973
Tex. Gen. Laws 1122, 1123 (1973 Penal Code § 19.02) (amended 1993) (current version at Tex.
Penal Code § 19.02).
2
Standard of Review
We apply a legal-sufficiency standard of review in determining whether the
evidence supports each element of a criminal offense that the State is required to
prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19,
(1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see Gear v.
State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Under this standard, we
examine all the evidence adduced at trial in the light most favorable to the verdict to
determine whether a jury was rationally justified in finding guilt beyond a reasonable
doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438 S.W.3d 134, 136–37 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d). We consider all evidence in the record,
whether admissible or inadmissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex.
Crim. App. 2013). We also consider both direct and circumstantial evidence, as well
as any reasonable inferences that may be drawn from the evidence. See Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We will uphold the jury’s
verdict unless a rational factfinder had a reasonable doubt as to any essential
element. Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009); West v. State,
406 S.W.3d 748, 756 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d).
We consider all evidence presented at trial, but we do not re-evaluate the
weight and credibility of the evidence or substitute our judgment for that of the fact
finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because
the jury is the sole judge of the witness’s credibility and the weight given their
testimony, we resolve any evidentiary conflicts or inconsistencies in favor of the
verdict. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).
3
The Evidence
Schwartz’s body was found in the driver’s seat of a red Mazda on Park Manor.
Heidbreder’s body was on the pavement near the passenger side of the vehicle. Each
complainant had three gunshot wounds to the head from a 9-millimeter handgun.
Appellant’s defensive theory at trial was that he was not present when the
complainants were shot. Accordingly, we discuss the evidence as it relates to the
identity of the person who intentionally and knowingly caused the deaths of the
complainants by shooting them with a firearm.
An expert for the defense, Louis Akin, prepared a video reconstruction of the
shootings. The substance of Akin’s testimony was that the shooter stood outside the
car on the passenger’s side. According to Akin, most of the shots were fired with the
handgun held inside the car, as the shooter leaned into the car. Akin testified that
Heidbreder was probably pulled out of the car, and he expected the person who
pulled Heidbreder out of the car came in contact with Heidbreder’s blood.
Raul Velasquez lived nearby. After hearing gunshots, he looked out the
window and saw a man wearing a black cap and brown vest exit the backseat of a
little red car on the passenger side. Velasquez saw that man drag another man out of
the car. Velasquez moved to another window and saw the man in the vest on the
other side of the bayou getting on a bike. Other than the man on the ground, the only
person Velasquez saw was the man in the vest.
Officer Jack Greenwood testified that Velasquez described the person he saw
as a light-complexioned male wearing a white baseball cap turned backwards, a
4
brown vest, and dark pants. The man was about 5’7” or 5’8” tall and weighed 130
to 140 pounds.
Ralph Pawek lived on the opposite side of the bayou from Velasquez. Pawek
was in front of his house, near the street, when he heard multiple gunshots. Pawek
saw the shooter by the passenger’s side door of a little red car. Pawek described the
man’s complexion as brownish and thought he was Mexican; he had a white hat on
backward. The man reached into the car and fired three more shots. Pawek then saw
him take a white envelope from the area of the glove box. The man started towards
the bayou, walking fast. Pawek went to the backyard to avoid being seen, and after
a few minutes, looked but did not see the man. Pawek did not see anyone else.
Roy Hammond was working his first day on a new postal route when he heard
“bam, bam, bam.” Hammond looked across the bayou and saw someone leaning
over a red car as if talking to someone on the passenger’s side. Hammond proceeded
on his route and when he returned to that area, Hammond saw a light-skinned black
or Hispanic man on a bicycle.
Veronica Wells lived on Park Manor. Her children were playing outside when
she heard what she thought could be shots. Wells stepped outside and saw a man trot
by. Wells checked on her children and went inside. Wells was subsequently shown
a photographic lineup and identified the man she saw that day by signing the back
of the photograph. The man she identified was appellant. The photographic lineup
was admitted into evidence.
Two pagers were found at the scene. One pager was on the ground by the right
front tire and the other pager was on Schwartz’s body. On April 11, 1994, at 8:19
a.m., a call was made from Schwartz’s apartment to appellant’s pager. There were
two numbers registered to appellant: (1) a pager number that was disconnected less
5
than a day after the shootings; and (2) a phone number assigned to appellant’s home
address that was disconnected approximately two hours after the shootings.
John Chulsoo Paek, a close friend and housemate of Heidbreder, gave a video
statement on April 26, 1994, that was admitted into evidence. Paek also knew
Schwartz. The night of April 10, 1994, Schwartz made arrangements to purchase
sixty pounds of marijuana for $24,000. Schwartz had $11,000, Heidbreder had
$9,000, and Paek had $4,000. Schwartz did not reveal the name of the dealer but said
he drove an Impala.
The deal was planned for April 11, 1994, because Schwartz’s money was in a
safe-deposit box, and he could not access it until the bank opened at 9:00 a.m. on
Monday morning. About 10:00 a.m. on April 11, 1994, Paek and Heidbreder flew to
Hobby Airport in Houston. Schwartz drove to Houston. Heidbreder and Paek were
to check into a motel near the Astrodome and the deal would occur in the room.
Heidbreder and Paek were picked up at the airport by Kelly King and his girlfriend,
Katherine Aires. Around 11:15 a.m., Heidbreder and Paek checked into a motel.
Schwartz arrived at the motel about 12:15 p.m. and said the plan had changed.
Schwartz was going to pick up the dealer at Taco Bell. While Schwartz was gone,
Paek tried to talk Heidbreder out of the deal—believing it was a setup. Paek advised
Heidbreder to leave the money at the motel and sit in the back seat of the car with
Schwartz’s gun. Paek had seen Schwartz’s gun, a 9-millimeter, and Schwartz had
told Paek that he never went to Houston without it.
When Schwartz returned, Heidbreder left with his and Paek’s money in
several white envelopes. Paek saw Heidbreder get in the front seat and a black male,
wearing a baseball hat and shorts, climb into the back seat. Paek could not guess his
height or weight.
6
Paek waited in the hotel room. About 4:30 p.m., Katherine Aires and Kelly
King returned. When they saw the news at 5:00 p.m., they went to the police and
Paek and King gave a statement.
Reynaldo Butanda testified appellant was a friend that he had known since
junior high school. In the spring of 1994, appellant drove a green Chevy Impala and
a brown or beige Suburban. On April 11, 1994, appellant arrived at Butanda’s home
on a bike. Appellant was wearing a “beanie type cap” and a brown vest but Butanda
did not recall if appellant was wearing shorts or pants. Appellant needed a ride so
Butanda and his neighbor drove appellant to a fast-food restaurant where appellant’s
Suburban was parked.
Butanda next spoke to appellant over the phone. Appellant was “panicky,”
and told Butanda, “I did it; I did it.” Butanda went to see appellant at Athena
Scopelitis’ apartment. Scopelitis was not present when appellant told Butanda, “I did
it, I did them in.” Appellant told Butanda that he took a bike to the bayou and went
back to where he had left his vehicle, and someone picked him up. He said he “did
it” and then got on his bike and went to Butanda’s house. The shootings occurred
about three to four miles from Butanda’s house. Appellant showed Butanda money
in a white envelope. In a field by Scopelitis’ apartment, appellant walked up to a
pile, poured gas on it, and lit it on fire. Butanda did not know what was in the pile.
Butanda could not be certain whether this occurred on the same day appellant came
to his house on the bike, or the next day.
Butanda saw reports of the murders on the news and recognized Schwartz,
whom he had seen more than once at appellant’s apartment. Butanda confronted
appellant and asked him if Schwartz was one of the people that he “did in.” Appellant
replied, “Yes.” Appellant told Butanda that he met Schwartz that day to sell him
7
some “weed.” The last time Butanda saw appellant, appellant said he was leaving
and Butanda probably would not see him again.
On cross-examination, Butanda testified the largest amount of “weed” he saw
appellant with was about a pound. Butanda also admitted that he may have been in
custody as a material witness when he gave his statement, and that the police
mentioned that Butanda fit the description of the suspect. Butanda testified that
appellant was taller than he was and more muscular; Butanda considered himself
small-built. Butanda identified appellant in a picture that was taken in May of 1994,
and stated that appellant’s hair looked like that the last time Butanda saw him.
Butanda agreed that appellant’s hair, except for the bottom part, would have been
inside the beanie or skull cap. Butanda agreed that he asked about a reward flier for
$11,000, but denied asking if he could collect it.
Zev Isgur had known Schwartz since grade school. Isgur had transported
marijuana to Austin for Schwartz. The last time Isgur did so was two Saturdays
before the shootings. Isgur denied setting up a meeting between Schwartz and
another supplier, Andre Jones. Isgur said Schwartz and Jones knew each other well
enough to call each other directly. According to Isgur, Schwartz was “constantly” in
that neighborhood, and Isgur had waited with Schwartz at the same place where
Schwartz was killed.
Athena Scopelitis testified that in 1994 she had known appellant for a few
years. In May 1994, she went to the Dominican Republic with appellant and returned
in October of that year. According to her trial testimony, appellant did not tell
Scopelitis why he wanted to leave the country. Appellant did not return to the United
States with Scopelitis; she testified she had not seen appellant since leaving the
Dominican Republic. Scopelitis stated that she did not recall talking to police or
8
giving an affidavit. Scopelitis recalled appellant and “Rey”2 coming to her apartment
but nothing more. She testified appellant did not seem upset. Scopelitis was unaware
about appellant telling federal officers that he fled because he was afraid.
Scopelitis testified that after having no contact for almost twenty years,
appellant’s mother contacted her a few months before trial, and they spoke several
times. The most recent contact was about a week before trial. Scopelitis denied that
appellant’s mother told her what to say and claimed to be nervous because she
believed members of the complainants’ families might try to retaliate. Scopelitis
denied knowing anything about the shootings when they happened and claimed
appellant never talked to her about it. She said appellant had an old Impala and his
other vehicle was a Suburban.
An affidavit by Scopelitis from October 1994 was admitted into evidence.
Scopelitis averred:
. . . I had a friend named Chiron Francis [appellant]. I had known Chiron
him [sic] for about three years. . . . I knew that Chiron was a narcotics
dealer and mainly dealt marijuana. . . .At that time, he owned a brown
Suburban, but he didn’t drive it very much. Through Chiron, I met a
friend of his named “Ray.” At the time, I did not know if “Ray” was
involved in Chiron’s narcotics transactions. I came to know that Ray
owned a couple of guns, one of which was a handgun.
Sometime during the middle of April, 1994, . . .Chiron came over. . . .
He stayed for awhile and then he left. He came back in a couple of
hours. . . . and after about 20 minutes Ray came in also. . . . I began to
get the feeling that something was going on between Chiron and Ray. .
. . I asked Chiron to go outside with me to check the mail so I could
speak with him alone. I asked him “Is there something going on” [sic]
Chiron at first said that there was nothing going on, but then told me
that he was involved in a murder in Houston, Tx. and that it was a white
boy that got killed. I asked Chiron where they [sic] killing had happened
and he told me that it was in Southwest Houston. I asked him who had
2
Scopelitis claimed not to know if “Rey” was Reynaldo Butanda.
9
been killed and if it was anyone that we knew. He just kept saying,
“Don’t worry. You don’t want to get involved.”
Later, Chiron and Ray left. . . . While they were gone, I went over to a
friend of mine’s apartment. . . . I told her that I was scared and I thought
that Chiron was involved in some type of murder. . . .
When they returned, Ray stayed in the living room and Chiron and I
went into the bedroom. I asked him where he had been and he told me
that they had been “back there burning some clothes.” I asked him
whose clothes. Chiron didn't answer but just looked at me. He kept
stating to me, “I don’t want to tell you too much. You don’t want to get
involved!” I assumed that the burnt clothes had something to do with
the murder that Chiron told me he was involved in. Over the next couple
of days, I continued to question him about the murder and all he ever
told me was, “Don’t worry about it; I don’t want you to get involved!”
About three days after he told me about the murder, Chiron told me that
we needed to go away for a while. He suggested the Caribbean and I
suggested that we go to the Dominican Republic. I suspected that the
reason he wanted to leave the United States, but he never actually told
me that it was the reason.
We got our passports and left for the Dominican Republic the first week
of May, 1994. Before we left the States, I saw Chiron counting some
money inside my apartment. I recall him telling me that it was about six
thousand dollars. . . . I was having problems with my pregnancy and I
wanted to come back to the States so I came back this past Monday
night. Chiron told me that he would come back later but I don’t think
he will ever come back. . . .
Scopelitis stated she did not know if “Ray” was Rey Butanda but agreed that
he was Latino and shorter than appellant. Scopelitis “guessed” the passport photo of
appellant admitted into evidence showed his appearance in 1994 and said appellant
was “bigger” at trial. Scopelitis testified George Ward bore a resemblance to
appellant at the time of the shootings and Ward’s photograph was admitted into
evidence. George also was involved in narcotics trafficking in 1994, but was
deceased at the time of trial.
10
Jack McClain, a special agent with Homeland Security Investigations, took an
audio statement from appellant on June 16, 2014, while appellant was at a detention
center in Caracas, Venezuela. Appellant said he read on the Internet that he was a
suspect in a double-homicide that occurred in Texas in 1994. Appellant denied ever
killing anyone. Appellant said he left Texas “when the boys were murdered” because
he knew them. Appellant admitted that he sold small quantities of “dope.” Appellant
knew Schwartz, but not the other man, and had seen both complainants on the
morning they were killed. According to appellant, Schwartz called him to buy one
or two pounds of “weed,” which appellant said he did not have because he only had
nickel and dime bags. Appellant told Schwartz to call “BJ,” his Mexican connection.
Appellant talked to Schwartz that morning and put him in contact with “BJ.”
Appellant told Schwartz to pick him up at a body shop, where appellant left his
vehicle. Schwartz and Heidbreder picked appellant up around 9:00 a.m. Appellant
sat in the back seat of the car, a red Mazda. They smoked a “joint” and appellant was
dropped off at his house around 9:15 a.m. No one else was at his house. Appellant’s
father came home and saw appellant, but appellant did not remember what time.
According to appellant, he was not on Park Manor on April 11, 1994, but stayed
home after 9:15 a.m.
According to appellant, he next saw Schwartz and Heidbreder “on the news”
and found out what happened to them the following day. Appellant testified he
received a call from the Mexican mob and was told to be careful or they would come
for him next. Appellant said he was scared. Appellant left his father’s house and
went to his girlfriend’s house in Sugar Land and stayed with her for a week.
According to appellant, he continued to receive death threats from the Mexican mob.
Rey and others told appellant “they” were coming for him, but appellant claimed not
to know the reason. Appellant speculated it was because he was the only connection
11
between the Mexican mob and the complainants. Appellant said people were
threatening his family, but he did not know if his family had reported it.
Appellant went to the Dominican Republic and stayed for almost two years
before going to Africa. Eventually, appellant went to Venezuela.
Analysis
Appellant challenges the sufficiency of the evidence on the grounds the State
failed to prove that it was he who intentionally or knowingly caused the deaths of
Heidbreder or Schwartz. Appellant does not contest any other element of either
offense.3
Specifically, appellant argues there was no evidence placing him at the scene,
specifically that there were no fingerprints, no DNA, and no shoe prints. Appellant
references testimony that the officers processing the scene did not take enough
photos, failed to examine or test the complainants’ clothing, and asserts there was
no positive identification of blood or DNA.
Further, appellant points to Pawek’s and Hammond’s failure to identify him
as the person they saw on April 11, 1994. Appellant also contends witnesses did not
describe the suspect as having dreadlocks, even though appellant had dreadlocks at
the time that would not have been concealed by a cap. In addition, the witnesses did
not describe the suspect as 6’2” tall, which is appellant’s height. Wells described
appellant as being of medium height but when appellant stood, Wells agreed his
height was not “medium.” According to appellant, the photograph Wells signed was
“old” and therefore did not show how he looked on April 11, 1994. Wells could not
identify appellant in court as the person she saw on April 11, 1994, but could only
identify the photograph as the one she signed on April 27, 1994.
3
See 1973 Penal Code § 19.02, supra, note 1.
12
Appellant contests Butanda’s testimony on several grounds. Butanda was in
custody in October 1994 when he gave his statement to police and officers told
Butanda that Butanda fit the description of the suspect. Butanda could not provide a
specific date when he spoke to appellant over the phone or went to Scopelitis’
apartment and Butanda did not describe appellant as having blood on himself, mud
on his bike, or being agitated. Further, Butanda’s testimony that appellant said he
“did it” could have referred to setting up the drug deal. Also, Butanda knew about
the Crime Stoppers’ reward but did not call to collect the reward or inquire about the
reward.
The record reflects appellant admitted to being in the Mazda with Schwartz
and Heidbreder the morning of April 11, 1994. He did not claim that had the scene
been processed more thoroughly, it would have shown that he was not in the car that
day. Appellant claimed he was dropped off at home by 9:15 a.m.; however,
Heidbreder and Paek did not leave Austin until after 9:15 a.m. and a call was made
from Schwartz’s apartment to appellant’s pager at 8:19 a.m. From this evidence, a
rational trier of fact could have found appellant’s testimony was not credible. See
Wesbrook, 29 S.W.3d at 111 (stating the jury is the sole judge of the witness’s
credibility and the weight given their testimony).
The record reflects when Wells was shown the lineup, she identified the man
in one of the photographs as the man she saw on April 11, 1994. She signed the back
of that photograph to indicate her selection. Wells identified her signature on the
back of the photograph. Wells admitted that she could not identify the person she
saw that day from memory.
The jury heard evidence of the physical descriptions of the suspect given by
the witnesses. The jury resolved any conflicts or inconsistencies in light of other
evidence. The jury heard testimony that Velasquez and Hammond saw a man on a
13
bike and appellant arrived at Butanda’s home on a bike, which appellant left near
the scene of the shootings before being picked up by Schwartz. Paek said Heidbreder
took the money with him in white envelopes. Pawek saw the suspect take a white
envelope from the car. Appellant showed Butanda money in a white envelope and
Scopelitis said appellant had $6,000 in cash. Appellant admitted to Butanda that he
killed Schwartz and Heidbreder. Scopelitis’ affidavit is consistent with Butanda’s
testimony. After the day of the murders, appellant disconnected his pager and phone
and in May 1994, appellant left the country.
It is not for this court to re-evaluate the weight and credibility of the evidence
or substitute our judgment for that of the fact finders. See William, 235 S.W.3d at
750. Rather, we resolve any evidentiary conflicts or inconsistencies in favor of the
verdict. See Wesbrook, 29 S.W.3d at 111. Considering all the evidence in a light
most favorable to the verdict, we conclude a rational juror could have found
appellant guilty beyond a reasonable doubt of being the person who intentionally or
knowingly caused the deaths of Heidbreder and Schwartz by shooting them with a
firearm. See Jackson, 443 U.S. at 319; Gear, 340 S.W.3d at 746. Appellant’s ninth
issue is overruled as to both counts.
CLAIMS THAT OFFICERS MISHANDLED EVIDENCE
In his first issue, appellant contends he was denied a fair trial in violation of
his constitutional rights. See U.S. Const. amends. VI, XIV; Tex. Const. art. I, § 19.
In his second issue appellant contends the trial court erred by denying his motion to
dismiss and his motion to suppress on the grounds officers violated sections 37.094
4
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 37.09, 1973 Tex. Gen. Laws 883,
948, amended by Act of May 17, 1991, 72d Leg. R.S., ch. 565, § 4, 1991 Tex. Gen. Laws 2003,
2004 (1991 Tex. Penal Code § 37.09) (amended 1997, 2007, 2011) (current version at Tex. Penal
Code § 37.09).
14
and 37.105 of the Texas Penal Code. As grounds for both issues, appellant claims
the State, acting in bad faith, tampered with, concealed, fabricated, failed to preserve,
concealed, and destroyed evidence and falsified government records. We consider
these claims pursuant to the statutes in effect on April 11, 1994.
Section 37.09 provided, in pertinent part:
(a) A person commits an offense if, knowing that an investigation or
official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with
intent to impair its verity, legibility, or availability as evidence in the
investigation or official proceeding; or
(2) makes, presents or uses any record, document, or thing with
knowledge of its falsity and with intent to affect the course or outcome
of the investigation or official proceeding.
Section 37.10 provided, in pertinent part:
(a) A person commits an offense if he:
(1) knowingly makes a false entry in, or false alteration of, a
governmental record;
(2) makes, presents, or uses any record, document, or thing with
knowledge of its falsity and with intent that it be taken as a genuine
governmental record; or
(3) intentionally destroys, conceals, removes, or otherwise impairs the
verity, legibility, or availability of a governmental record;
(4) makes, presents, or uses a governmental record with knowledge of
its falsity. . . .
5
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 37.10, 1973 Tex. Gen. Laws 883,
948, amended by Act of May 29, 1989, 71st Leg., ch. 1248, § 66, 1989 Tex. Gen. Laws 4996,
5041, amended by Act of May 2, 1991, 72d Leg., ch. 113, § 4, 1991 Tex. Gen. Laws 686, 687,
amended by Act of May 17, 1991, 72d Leg., ch. 565, § 5, 1991 Tex. Gen. Laws 2003, 2004 (1991
Tex. Penal Code § 37.10) (amended 1993, 1997, 1999, 2001, 2003, 2005, 2007, 2009, 2013, 2015,
2019) (current version at Tex. Penal Code § 37.10).
15
In his argument, appellant complaints about specific pieces of evidence. We
address these claims below.
Heidbreder’s Body
Appellant asserts that Sergeant John Clarke’s affidavits establish officers
tampered with physical evidence.6 Specifically, appellant claims officers must have
moved Heidbreder’s body.
At the hearing on the motion to suppress, Clarke testified that he became
involved in this case in 2005 as part of the FBI Task Force on fugitive investigations.
He had no personal knowledge of the crime scene. In making his affidavits he relied
upon the reports and documents prepared from the investigation. Clarke
acknowledged those reports may contain inaccuracies.
Clarke executed two affidavits in July 2014—one in support of appellant’s
extradition and the other in support of appellant’s arrest. Both affidavits were
admitted into evidence as exhibits during the hearing on appellant’s motion to
suppress. The affidavit in support of extradition states the information presented
“was obtained through witness interviews, the collection of evidence, and other
sources.” The affidavit for the arrest warrant is based upon Clarke’s review of an
offense report.
Both affidavits state that Heidbreder was in the front passenger’s seat.
Appellant points out this statement is inconsistent with the photographic evidence of
the crime scene. It is also inconsistent with evidence adduced at trial. Pawek testified
he saw the suspect pull the passenger out of the car, and appellant’s expert, Akin,
testified that he believed the shooter pulled Heidbreder from the car.
6
1991 Tex. Penal Code § 37.09, supra, note 4.
16
There is no evidence officers moved Heidbreder’s body or that Clarke’s
affidavit is perjurious. Rather, there is an inconsistency between the report on which
Clarke relied and the evidence adduced. There is no evidence that officers altered
any “thing” with intent to impair its verity, or availability as evidence in the
investigation. Accordingly, the record does not reflect an offense under section 37.09
was committed.
Shell Casings
Appellant suggests officers falsified government records.7 Appellant
complains of an entry in the Current Information Report (“CIR”) which refers to
seven shell casings. However, a photograph of the interior of the car shows a shell
casing not referred to in the CIR—the eighth shell casing. Further, the Investigator’s
Report states bullet “casings” (plural) were found adjacent to the right front wheel
of the car even though the photograph shows only one casing—the ninth shell casing.
There is no evidence that officers falsely, rather than mistakenly, reported the
number of shell casings or made the report with knowledge of its falsity.
Accordingly, the record does not reflect an offense was committed.
The LSU Cap
Next, appellant contends officers tampered with evidence and a government
record by “planting” an LSU cap in the car. Photographs taken at the crime scene
show only one baseball cap—a red and blue “KC” cap. An LSU cap was collected
as evidence by an officer who was deceased at the time of trial. However, the LSU
cap is not shown in any of the photographs of the crime scene. Further, appellant
contends the LSU cap is not shown in any of the photographs of Schwartz and was
7
1991 Tex. Penal Code § 37.10, supra note 5.
17
not listed among Schwartz’s clothing in the autopsy report, despite being listed in
the CIR, which states:
RED AND BLUE “KC” BALLCAP WHICH WAS ATOP A PURPLE
AND GOLD “LSU” BALLCAP, BOTH ATOP [Schwartz’s] HEAD.
Also, appellant argues the LSU cap had two bullet holes, neither of which lined up
with the single bullet hole in the KC cap. And lastly, appellant avers the LSU cap
tested negative for the presence of human blood. According to appellant, this all
leads to “the inescapable conclusion . . . the LSU ballcap was planted by the police.”
Appellant’s characterization of the test results is inaccurate. Juli Rehfuss, a
criminalist with the Houston Forensic Science Center, testified during the hearing
on appellant’s motion to suppress that she processed stains on both caps for the
presence of blood. Rehfuss performed a Hematrace Test, which would confirm
whether or not the stains were human blood, and the results were negative. Rehfuss
explained the results as follows, “the item responded negatively to human origin
testing by Hematrace because . . . there probably either wasn’t enough sample there
or the proteins were too degraded to actually register on the test.” Thus, the blood
test results were negative, but not necessarily because the sample was not human
blood. Rehfuss further testified that she sent the sample for DNA testing, and the
DNA analyst’s report did give a single source human male DNA profile. There is an
inconsistency between the report and the evidence adduced but there is no evidence
officers planted the LSU cap in the car.
The fact that the LSU cap had two bullet holes that did not align with the
single bullet hole in the KC cap is evidence the CIR report is incorrect. This is
supported by a photograph showing the KC cap on Scwhartz’s head. There is not
another cap under the KC cap, which fits snugly. Thus, the report is inaccurate but
does not establish officers planted evidence with intent to impair its verity or
18
availability in the investigation. Accordingly, the record does not reflect an offense
was committed.8
The Car
Appellant complains the car was released with no evidence having been
collected from it. Specifically, appellant notes that no DNA samples were taken, no
fingerprints were lifted, no tests for gunshot residue were performed, no
measurements were taken, and no trajectories were calculated. However, in his audio
statement to McClain, appellant admitted to being in the back seat of the car on the
morning of the shootings. Appellant admitted that he was in the back seat of the car
before the shootings and therefore evidence from inside the car would not have
exculpated him. The release of the car does not establish officers destroyed evidence
with intent to impair its availability as evidence in the investigation. Accordingly,
the record does not reflect an offense was committed.9
Denial-of- Due-Process or Due-Course-of-Law Claim
Appellant contends the inconsistencies described above and the failure of the
State to preserve evidence amount to a denial of his rights to due process and due
course of law. Further, appellant contends these evidentiary issues establish
violations of the 1991 Texas Penal Code section 37.09, and therefore the evidence
should have been suppressed and the cases against him dismissed.10
The State has a duty to preserve exculpatory evidence and potentially useful
evidence. State v. Vasquez, 230 S.W.3d 744, 749 (Tex. App.—Houston [14th Dist.]
8
The State’s case was not based upon the LSU cap or any forensic evidence derived
therefrom.
9
Furthermore, the State’s case was not based upon any forensic evidence taken from the
car.
10
Appellant presented these arguments to the trial court in his motion to suppress and
motion to dismiss. For purposes of this appeal, we assume without deciding that violations of the
19
2007, no pet.). There is a distinction between “material, exculpatory evidence” and
“potentially useful evidence.” Id. at 747. Potentially useful evidence is “evidentiary
material of which no more can be said than that it could have been subjected to tests,
the results of which might have exonerated the defendant.” Arizona v. Youngblood,
488 U.S. 51, 57–58 (1988).
To show a violation of due process or due course of law based on potentially
useful evidence, as opposed to material, exculpatory evidence, the defendant must
show the State acted in bad faith. Vasquez, 230 S.W.3d at 747 (citing Illinois v.
Fisher, 540 U.S. 544, 547–48 (2004); Youngblood, 488 U.S. at 58 (due process));
Mahaffey v. State, 937 S.W.2d 51, 53 (Tex. App.—Houston [1st Dist.] 1996, no pet.)
(due course of law)). Similarly, to constitute an offense under the 1991 Texas Penal
Code section 37.09, it must be proven the actor had the requisite intent.
When the trial court denied appellant’s motions to suppress and dismiss, the
court found appellant had presented only supposition and speculation. The trial court
found that the State did not act in bad faith and there is no evidence to the contrary
in our record. Accordingly, the record supports the trial court’s finding that the State
did not act in bad faith. Viewing the evidence in the light most favorable to the trial
court’s ruling, we hold the record adequately supports the trial court’s finding that
the State did not act in bad faith. See Jones v. State, 437 S.W.3d 536, 540 (Tex.
App.—Texarkana 2014, pet. ref’d). Accordingly, we hold the trial court did not
abuse its discretion in denying appellant’s motion to suppress or motion to dismiss.
See Vasquez, 230 S.W.3d at 747–48 (affirming denial of motion to suppress blood-
test results performed on an accused intoxicant’s blood sample where the trial court
1991 Texas Penal Code sections 37.09 and 37.10 would render the evidence inadmissible.
20
found that the blood sample was not destroyed in bad faith); see also Jones, 437
S.W.3d at 54. Issues one and two are overruled as to both counts.
CLAIMS OF PERJURY AND FRAUD ON THE COURT
As an alternative to issue one, appellant argues in his third issue that if
Sergeant Clarke’s affidavits are not perjurious, the State failed to produce Brady
material.11 But, appellant contends, if Clarke’s affidavits are perjurious, then the trial
court erred in failing to find fraud on the court. Further, in issue four, appellant
contends that if Clarke’s affidavits are perjurious, his due process rights were
violated by use of those affidavits to secure his extradition from Venezuela.
We have already concluded in our discussion of appellant’s first issue, supra,
that there is no evidence Clarke’s affidavits were perjurious. Appellant asserts that
if the affidavits were not perjurious, the State failed to produce Brady material.
Specifically, appellant complains the State failed to produce evidence “showing the
position of the bodies in the car when the police arrived.” As set forth in our
discussion of appellant’s first issue, supra, the evidence demonstrates Heidbreder’s
body was not in the car when the police arrived. Thus there was no evidence
“showing the position of [Heidbreder’s body] in the car when the police arrived.”
Accordingly, we overrule issues three and four as to both counts.
CLAIMS THAT EVIDENCE WAS ERRONEOUSLY EXCLUDED
Appellant makes a single argument for his fifth, sixth and seventh issues. In
his fifth issue, appellant claims the trial court’s exclusion of evidence that the State
collected and produced, because there was no one to sponsor it, denied him a fair
trial in violation of his federal and state constitutional rights. See U.S. Const.
amends. VI, XIV; Tex. Const. art. I, § 19. In issue six appellant contends the trial
11
Brady v. Maryland, 373 U.S. 83 (1963).
21
court’s exclusion of evidence denied appellant equal protection of the law because
in his criminal trial he was required to have the State authenticate or sponsor the
evidence that it produced, but in a civil case the production of items by one party
authenticates those items for use against that party. Lastly, in issue seven appellant
asserts he was denied his right to substantive due process when Brady material was
excluded because there was no one to sponsor or authenticate that evidence.
Appellant makes two references to the record where the trial court sustained
the State’s objections to evidence that he was attempting to introduce. That evidence
consisted of photographs of the LSU cap and the KC cap. The two photographs of
the KC cap were, in fact, admitted into evidence as defense exhibits. However, the
trial court sustained the State’s objection to admitting the two photographs of the
LSU cap as defense exhibits. The record reflects the LSU cap is not depicted in any
of the photographs of the crime scene and the officer who collected the LSU cap as
evidence was deceased at the time of trial.
Assuming, without deciding, the trial court erred in excluding the photographs
of the LSU cap, we conclude the exclusion of the photographs does not constitute
reversible error. Generally, the erroneous exclusion of evidence offered under the
rules of evidence constitutes non-constitutional error and is reviewed under Texas
Rule of Appellate Procedure 44.2(b).12 Walters v. State, 247 S.W.3d 204, 219 (Tex.
Crim. App. 2007). However, the exclusion of evidence might rise to the level of a
12
Texas Rule of Appellate Procedure 44.2 provides:
(a) Constitutional Error. If the appellate record in a criminal case reveals
constitutional error that is subject to harmless error review, the court of appeals
must reverse a judgment of conviction or punishment unless the court determines
beyond a reasonable doubt that the error did not contribute to the conviction or
punishment.
(b) Other Errors. Any other error, defect, irregularity, or variance that does not
affect substantial rights must be disregarded.
22
constitutional violation if: (1) a state evidentiary rule categorically and arbitrarily
prohibits the defendant from offering otherwise relevant, reliable evidence vital to
the defense; or (2) a trial court’s clearly erroneous ruling results in the exclusion of
admissible evidence that forms the vital core of a defendant’s theory of defense and
effectively prevents the defendant from presenting that defense. Id.; see also
Vasquez v. State, 501 S.W.3d 691, 700 (Tex. App.—Houston [14th Dist.] 2016, pet.
ref’d).
The record reflects appellant’s defense was that he was not present at the scene
of the shooting. As discussed in addressing appellant’s claim that the evidence was
insufficient to support the judgments, appellant stated that he was taken home at 9:15
a.m. and stayed there the rest of the day. Appellant offers no explanation as to how
these two photographs were vital to his defense and he makes no claim that their
exclusion precluded him from presenting that defense. Nor could we reasonably
conclude that the photographs of the LSU cap were so vital to appellant’s defense
that their exclusion, in light of all the evidence adduced, contributed to his
conviction. See Tex. R. App. P. 44.2(a). Thus, even under the heightened standard
of review for constitutional error, we conclude the trial court’s error, if any, was
harmless. Issues five, six and seven are overruled as to both counts.
CLAIM THAT EVIDENCE WAS ADMISSIBLE AS AN ANCIENT DOCUMENT
In his eighth issue appellant claims his federal and state constitutional rights
were violated when the trial court excluded an “ancient document.” See U.S. Const.
amends. VI, XIV; Tex. Const. art. I, § 19. Specifically, appellant complains the trial
court erred in refusing to admit Defendant’s Exhibit 109, a written statement dated
May 4, 1994, that bears the signature of Islam Mujahid.
Mujahid was driving a garbage truck for the City of Houston on April 11,
1994. He was questioned by police about a red car that he saw at a dead end where
23
Park Manor intersects with Castlecreek while he was driving his route. During his
testimony, defense counsel asked Mujahid about a written statement he gave to
police. Mujahid testified that he gave an oral statement, not a written statement.
Defense counsel sought to admit a written statement as Defendant’s Exhibit 109.
Mujahid identified the signatures on both pages of the statement as his but testified
the words in the statement above his signature were not there when he signed those
two pages. At the close of voir dire, the trial court sustained the State’s objection to
admitting the statement but gave defense counsel leave “to try to prove this up.”
On direct examination, Mujahid testified he saw the red car but that he did not
look into the car and did not see anyone inside. Mujahid testified he did not sign
“that paper,” and did not know how his signature “got there.” According to Mujahid,
he did not give that statement and “those are not [his] words.”
Defense counsel sought to admit Defendant’s Exhibit 109 as a prior
inconsistent statement. The trial court sustained the State’s objection.13
Mujahid then speculated those statements were made by the other driver on
the truck. When asked if he read the documents before signing them, Mujahid
testified, “There was nothing to sign. They just questioned us.” Defense counsel then
passed the witness, subject to recall.
Another witness testified and proceedings ended for the day. The next day,
defense counsel again sought to admit Defendant’s Exhibit 109 as an ancient
document under Rules of Evidence 803 and 901. Tex. R. Evid. 803, 901. The trial
13
Appellant does not claim on appeal the statement was admissible as a prior inconsistent
statement. See Tex. R. Evid. 801(e)(1); Owens v. State, 916 S.W.2d 713, 717 (Tex. App.—Waco
1996, no pet.) (concluding witness’s voluntary written statement to police did not qualify for Rule
801(e)(1) exclusion from hearsay because the inconsistent statement must have been given under
oath subject to the penalty of perjury).
24
court sustained the State’s objection after counsel for the State confirmed that the
police officer who took the statement was deceased.
Rule 803(16) provides that “[a] statement in a document that is at least 20
years old and whose authenticity is established” is an exception to the rule against
hearsay, regardless of whether the declarant is available as a witness. Tex. R. Evid.
803(16). Rule 901 states that “[t]o satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Tex. R. Evid. 901.
An example of evidence that satisfies this requirement as to a document is “evidence
that it (A) is in a condition that creates no suspicion about its authenticity; (B) was
in a place where, if authentic, it would likely be; and (C) is at least 20 years old when
offered.” Tex. R. Evid. 901(8).
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018);
Roderick v. State, 494 S.W.3d 868, 874 (Tex. App.—Houston [14th Dist.] 2016, no
pet.). If the trial court’s decision is within the bounds of reasonable disagreement,
we will not disturb its ruling. Gonzalez, 544 S.W.3d at 370. The trial court’s ruling
will be sustained if it is correct on any theory of law applicable to the case. Roderick,
494 S.W.3d at 874.
To authenticate the statement, appellant relies upon Mujahid’s identification
of his signatures on both pages of the statement. However, Mujahid testified that the
words in the statement were not his and he did not know how his signature came to
be on those two pages. Thus, the trial court had grounds to find there was some
suspicion about the document’s authenticity and to refuse to admit it as an ancient
document. See Tex. R. Evid. 901(8)(A). Issue eight is overruled as to both counts.
25
CLAIM THAT SENTENCE IS ILLEGAL
In his tenth issue appellant claims the sentences imposed are illegal for three
reasons. First, appellant asserts the trial court had no authority to order consecutive
sentences because section 3.03 of the Texas Penal Code and article 42.08 of the
Texas Code of Criminal Procedure mandate the sentences shall run concurrently.
The version of section 3.03 of the Texas Penal Code in the effect at the time
of the offense states:
When the accused is found guilty of more than one offense
arising out of the same criminal episode prosecuted in a single criminal
action, sentence for each offense for which he has been found guilty
shall be pronounced. Such sentences shall run concurrently.14
The applicable version of article 42.08 of the Texas Code of Criminal
Procedure provides:
(a) When the same defendant has been convicted in two or more cases,
judgment and sentence shall be pronounced in each case in the same
manner as if there had been but one conviction. Except as provided by
Subsections (b) and (c), of this article, in the discretion of the court, the
judgment in the second and subsequent convictions may either be that
the sentence imposed or suspended shall begin when the judgment and
the sentence imposed or suspended in the preceding conviction has
ceased to operate, or that the sentence imposed or suspended shall run
concurrently with the other case or cases, and sentence and execution
shall be accordingly. . . .15
14
Act of May 24, 1973, 63d Leg., R.S., ch. 399, § 1, sec. 3.03, 1973 Tex. Gen. Laws 883,
891 (amended 1995, 1997, 2005, 2007, 2009, 2011, 2013, 2019) (current version at Tex. Penal
Code § 3.03).
15
Act of May 27, 1965, 59th Leg., R.S., ch. 722, §1, art. 42.08, [2] 1965 Tex. Gen. Laws
317, 486, amended by Act of Apr. 2, 1985, 69th Leg., R.S., ch. 29, § 1, 1985 Tex. Gen. Laws 404,
404, amended by Act of May 30, 1987, 70th Leg., R.S., ch. 513, § 1, 1987 Tex. Gen. Laws 2125,
2125, amended by Act of May 28, 1989, 71st Leg., R.S., ch. 785, § 4.11, 1989 Tex. Gen. Laws
3471, 3495, Act of May 8, 1993, 73d Leg., R.S. ch. 900, § 5.03, 1993 Tex. Gen. Laws 3586, 3745,
3752 (amended 2009, 2015, 2017) (current version at Tex. Code Crim. Proc. art. 42.08).
26
The trial court stated in open court that the two sentences of seventy-five years
would be “cumulative.” The written judgments do not reflect the sentences are to be
cumulative and there is no motion or order in the record before this court to cumulate
the sentences. However, since the oral pronouncement controls, appellant’s
sentences are, in fact, cumulative. See Coffey v. State, 979 S.W.2d 326, 328 (Tex.
Crim. App. 1998) (holding the sentence pronounced in open court represents the
actual sentence and should there arise any conflict between the sentence pronounced
in open court and that manifested in the ensuing judgment, the sentence pronounced
in open court controls). As a general rule, when the oral pronouncement of sentence
and the written judgment vary, the oral pronouncement controls. Taylor v. State, 131
S.W.3d 497, 500 (Tex. Crim. App. 2004); Ex parte Madding, 70 S.W.3d 131, 135
(Tex. Crim. App. 2002). Explaining the rationale for this rule, we have stated,
[T]he imposition of sentence is the crucial moment when all of the
parties are physically present at the sentencing hearing and able to hear
and respond to the imposition of sentence. Once he leaves the
courtroom, the defendant begins serving the sentence imposed. Thus,
“it is the pronouncement of sentence that is the appealable event, and
the written sentence or order simply memorializes it and should
comport therewith.”
Madding, 70 S.W.3d at 135 (quoting Coffey v. State, 979 S.W.2d 326, 328 (Tex.
Crim. App. 1998)).
The trial court’s general authority under article 42.08 to order consecutive
sentences is statutorily limited by section 3.03 whenever a single criminal action
arising out of the same criminal episode occurs. See LaPorte v. State, 840 S.W.2d
412, 415 (Tex. Crim. App. 1992), overruled on other grounds by Ex parte Carter,
521 S.W.3d 344 (Tex. Crim. App. 2017). “If the facts show the proceeding is a single
criminal action based on charges arising out of the same criminal episode, the trial
court may not order consecutive sentences.” Id. Accordingly, we hold that the trial
27
court erred in failing to order that appellant’s sentences shall run concurrently.
Fernandez v. State, 814 S.W.2d 417, 420 (Tex. App.—Houston [14th Dist.] 1991),
aff’d, 832 S.W.2d 600 (Tex. Crim. App. 1992).
Appellant further argues that under the Constitution of Venezuela and the
Extradition Treaty between the United States and Venezuela,16 the sentence of
seventy-five years for each count is illegal. According to appellant, because he was
born in 1973, a seventy-five-year sentence is an illegal life sentence. Further,
appellant contends any sentence greater than thirty years is illegal. Alternatively,
appellant argues the United States had to present “satisfactory assurances” that a life
sentence would not be imposed.
Appellant presented these arguments to the trial court. In a hearing held on
May 22, 2017, the trial court ruled as follows:
Reading the extradition document as furnished to the Court, the
interpretation thereof, the only reference to 30 years is the federal
attorney’s request of 30 years; and that’s the only reference. There has
been no limitation placed upon that in the opinion of the Court.
The ruling of the Court itself does not place any limitations;
however, it’s very clear they were cognizant of the constitution of
Venezuela which said no death penalty and no life sentence.
The opinion of the individual from the State Department speaks that
they entered no agreements; but the constitution of Venezuela is very
clear that they will not extradite upon a life or a death sentence.
Therefore, there’s no limitation on years; but there is a limitation on life
or death; and I will so find.
The recommendation that extradition should be granted “with the condition
that [the United States] provide enough guarantees to not subject [appellant] to . . .
imprisonment of more than thirty (30) years” does not establish an agreement to
16
Treaty of Extradition, U.S.-Venez., art. IV, Jan. 19, 1922, 43 Stat.1698, T.I.A.S. No.
765.
28
limit appellant’s sentence to a maximum of thirty years. Appellant did not receive a
life sentence for either count—he was sentenced to a term of imprisonment for
seventy-five years.
Accordingly, we reject appellant’s claim that in each count his sentence of
seventy-five years was illegal. We therefore overrule, in part, appellant’s tenth issue
on both counts. We sustain, in part, appellant’s tenth issue on both counts and modify
the trial court’s judgments to reflect the sentences imposed shall be served
concurrently.
CLAIM THAT TRIAL COURT ERRED DURING VOIR DIRE
In his eleventh issue, appellant contends the trial court erred in refusing to
strike venirepersons 1–12, 16–20, 24–29, 33–55, 59–63, 65–67, 69–70, 74, 76, 78–
81, 84, 87, 89–90, and 96–100 for cause. Of these venirepersons, eleven served on
appellant’s jury (Nos. 4, 7, 8, 11, 26, 29, 34, 36, 37, 39 and 40).
To preserve error for a trial court’s erroneous denial of a challenge for cause,
appellant must show that: (1) he asserted a clear and specific challenge for cause;
(2) he used a peremptory challenge on the complained-of venire member; (3) his
peremptory challenges were exhausted; (4) his request for additional strikes was
denied; and (5) an objectionable juror sat on the jury. Comeaux v. State, 445 S.W.3d
745, 750 (Tex. Crim. App. 2014); see also Landers v. State, 110 S.W.3d 617, 624
(Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (holding error in the denial of a
challenge for cause was not preserved for review because defense counsel failed to
use an available peremptory challenge against the allegedly objectionable juror). The
record reflects appellant did not request any additional strikes and therefore failed to
preserve his issue for appellate review. See Tex. R. App. P. 33.1. We overrule issue
eleven on both counts.
29
CLAIM THAT VIDEO RECORDING SHOULD HAVE BEEN TRANSCRIBED
In his twelfth and final issue appellant complains of this court’s refusal to
abate this appeal and order the court reporter to transcribe the video recording of a
statement by John Chulsoo Paek. To complain of a court reporter’s failure to
transcribe the audio portion of a videotaped statement that was played to the jury
during the guilt-innocence and punishment phases of the trial, the defendant must
have preserved error by objecting before the trial court. See Williams v. State, 937
S.W.2d 479, 486 (Tex. Crim. App. 1996). Appellant did not object and therefore
waived any such complaint on appeal. See Tex. R. App. P. 33.1(a). Issue twelve is
overruled as to both counts.
CONCLUSION
The judgment of the trial court in each count is modified to reflect that the
sentences run concurrently. As modified, the judgments are affirmed.
Based on this disposition, it is unnecessary to address the State’s issue on
cross-appeal that it should be able to seek a life sentence if the case is reversed and
remanded for a new trial.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Chief Justice Frost and Justices Spain and Poissant.
Do Not Publish — Tex. R. App. P. 47.2(b).
30