Phillip Ericc Boldon v. State ( 2013 )

Opinion issued October 15, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-12-00486-CR
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PHILLIP ERICC BOLDON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1270589
MEMORANDUM OPINION
Phillip Ericc Boldon appeals a judgment convicting him of murder. See
TEX. PENAL CODE ANN. § 19.02 (West 2011). A jury found Boldon guilty and
assessed his punishment at life confinement in the Texas Department of Criminal
Justice. Boldon raises four issues on appeal. He contends: (1) the evidence is
legally insufficient to support his conviction; (2) the trial court erred in overruling
his motion for directed verdict; (3) the trial court erred in admitting a letter he
allegedly wrote while confined in Harris County Jail; and (4) the trial court erred in
denying his motion to suppress evidence found in his apartment. We affirm.
Background
At approximately 2:00 a.m. on June 2, 2010, Houston firefighters
extinguished a car fire in the parking lot of Renaissance Village at Shadow Lake
apartments. They discovered a body in the car’s back seat and contacted the
Houston Arson Bureau and the Houston Police Department.
Arson investigator R. Koryciak of the Houston Arson Bureau determined the
fire was an intentional fire fueled by an accelerant. He based his determination on
his knowledge of fire patterns and evidence collected from the scene, specifically,
a Walmart water bottle and matching cap. Investigator Koryciak observed a small
amount of clear liquid in the bottle and smelled gasoline. An accelerant detection
dog alerted to the presence of accelerants on the bottle and cap.
HPD and the Harris County Medical Examiner’s Office identified the
deceased as Sarah Weyrick. HPD determined the burnt car was registered to
Weyrick, and the ME’s Office later matched radiographs of the deceased’s teeth to
Weyrick’s known dental records.
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Dr. L. Flores performed Weyrick’s autopsy and Dr. J. Love consulted. Both
doctors concluded Weyrick was dead before the fire began. Based on
decomposition and other factors, they estimated time of death was May 31 or June
1. Dr. Flores concluded cause of death was sharp force injuries to the neck. She
ruled the death a homicide.
On July 15, the State charged Boldon with Weyrick’s murder. At trial, the
State argued Boldon murdered Weyrick at his Renaissance Village apartment on
May 31 then set her body on fire on June 2.
Brett Scally, a mutual acquaintance of Boldon and Weyrick, testified that
Weyrick was a prostitute and that he had given Boldon her phone number because
Boldon “was interested in meeting somebody.”
To prove that Boldon murdered Weyrick, the State used Renaissance Village
surveillance video and Weyrick’s cell phone records to establish a timeline for
May 31. At 2:48 a.m., a young man with Boldon’s coloring left Renaissance
Village on foot through the back gate. At 2:51 a.m., Weyrick received a phone call
from a pay phone located down the street from Boldon’s apartment. Judging from
the cell tower Weyrick’s phone used to receive the call, Weyrick was near her
apartment. At 3:02 a.m., the same man who had left Renaissance Village returned
on foot through the back gate. At 3:24 a.m., Weyrick received another incoming
call. This time, the call connected through a cell tower near Boldon’s apartment.
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Also at 3:24 a.m., a car identical to Weyrick’s pulled into the Renaissance Village
parking lot. The car never left the apartment complex.
Howard Martin, a known drug dealer, testified that he met Boldon in the
Renaissance Village parking lot to conduct a “business transaction” sometime
between 3:00 a.m. and 6:00 a.m on May 31. Martin further testified that Boldon
paid him with cash and the cash had blood on it. When Martin asked him about
the blood, Boldon responded that he had beaten up his girlfriend. In addition, the
State introduced evidence that four brief phone calls—each of only a few seconds
duration, indicating that the calls were probably not picked up—were made from
Weyrick’s phone between 6:29 a.m. and 6:31 a.m. on May 31 to Martin’s phone
number. Weyrick’s phone records showed that she had never called Martin before
that morning, and Martin testified that he did not know Weyrick and did not
answer any of the calls.
Officer D. Smith, in the HPD crime scene unit, and C. Head, a criminalist in
the HPD forensic biology division, also testified. Officer Smith observed blood
spatter on Boldon’s bedroom wall and closet. The State admitted photographs of
the spatter into evidence. Officer Smith also collected carpet samples from
Boldon’s apartment that appeared to be stained with blood. Head confirmed the
presence of blood and testified that DNA extracted from the carpet samples
matched DNA extracted from Weyrick’s remains.
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The stain pattern on the living room carpet indicated the presence of stain on
stain. Officer Smith testified that such a pattern can indicate removal efforts.
When a person wets an already dried stain, the wetted area creates a new stain on
top of the original stain. Head explained that some of the living room carpet stains
tested negative for blood. She opined that the negative test results could have
resulted from the application of a carpet cleaner containing bleach.
The State also introduced evidence implicating Boldon in the June 2 car fire.
Specifically, the State introduced video of a man who looked like Boldon
purchasing a Walmart-brand water bottle from a Walmart store near Boldon’s
apartment. The man had the same coloring as Boldon and, like Boldon, had a
tattoo on his shoulder. The State introduced a copy of the receipt for the
transaction that was time stamped June 2, 1:30 a.m., approximately thirty minutes
before the fire began.
Finally, the State introduced a letter Boldon allegedly wrote while confined
in Harris County Jail. In pertinent part, the letter said:
My mom is gonna reveal some really messed up facts to you which is
why I’m glad you have already moved. Nassier had made a
Anonymous Tip to the police the day after it happened even though he
had accepted money to clean up the mess. It’s sad that things even
come down to this.
Deputy Sheriff P. Galvan testified that he intercepted the letter from the jail’s
outgoing mail. The letter was addressed to Boldon’s mother at her house,
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indicated Boldon’s jail cell as the return address, bore Boldon’s SPN—a unique
number used to identify Boldon within Harris County Jail—and appeared to be
signed “P. Boldon, or B, with a B, scribble.” Although the letter was addressed to
Boldon’s mother at Boldon’s parents’ house, it was written to a woman named
Toni. The State introduced a photograph of a different letter addressed to Toni
Marrese at Boldon’s apartment.
The jury convicted Boldon of murder and assessed his punishment at
confinement for life. This appeal followed.
Discussion
I. Sufficiency of the Evidence and Motion for Directed Verdict
In his first and second points of error, Boldon contends the evidence is
legally insufficient to support his conviction and the trial court erred in overruling
his motion for directed verdict. He emphasizes the State’s reliance on
circumstantial evidence and argues the State invited the jury to speculate on his
guilt rather than infer his guilt from the evidence. He also emphasizes the State’s
failure to prove motive and HPD’s failure to find a murder weapon.
A. Standard of Review
We consider Boldon’s first and second points of error under the same
standard. See Lewis v. State, 193 S.W.3d 137, 139–40 (Tex. App.—Houston [1st
Dist.] 2006, no pet.) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim.
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Ohio App. 1996)) (“We treat a complaint of a denial of a motion for directed verdict as a
challenge to the sufficiency of the evidence to support a conviction.”). When
reviewing the sufficiency of the evidence, we view all of the evidence in the light
most favorable to the verdict to determine whether any rational fact finder could
have found the essential elements of the offense beyond a reasonable doubt.
McGregor v. State, 394 S.W.3d 90, 109 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979));
see also Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding
Jackson standard is only standard to use when determining sufficiency of
evidence). Our review of “all of the evidence” includes evidence that was properly
and improperly admitted. McGregor, 394 S.W.3d at 110 (quoting Clayton v. State,
235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).
The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Id. (citing Bartlett v. State,
270 S.W.3d 147, 150 (Tex. Crim. App. 2008)). A jury may accept one version of
the facts and reject another, and it may reject any part of a witness’s testimony. Id.
(citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)). We may not
re-evaluate the weight and credibility of the evidence or substitute our judgment
for that of the fact finder. Id. (citing Williams v. State, 235 S.W.3d 742, 750 (Tex.
Crim. App. 2007)). We afford almost complete deference to the jury’s
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determinations of credibility. Id. (citing Lancon v. State, 253 S.W.3d 699, 705
(Tex. Crim. App. 2008)). We resolve any inconsistencies in the evidence in favor
of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.
2000)).
B. Applicable Law
A person commits murder if he intentionally or knowingly causes the death
of another person or intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of another. TEX. PENAL
CODE § 19.02(b)(1), (2); Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App.
2013). A person acts intentionally, or with intent, with respect to the nature of his
conduct or to a result of his conduct when it is his conscious objective or desire to
engage in the conduct or cause the result. TEX. PENAL CODE § 6.03(a); Wise v.
State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). A person acts knowingly or
with knowledge of the nature of his conduct or circumstances when he is aware of
the nature of his conduct or that the circumstances exist. TEX. PENAL CODE
§ 6.03(b); Wise, 364 S.W.3d at 903.
A murder conviction may be based on circumstantial evidence. Temple,
390 S.W.3d at 359 (citing Clayton, 235 S.W.3d at 778). Circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor, and
circumstantial evidence alone can be sufficient to establish guilt. Id. (quoting
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Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In circumstantial
evidence cases, it is not necessary that every fact and circumstance point directly
and independently to the defendant’s guilt; it is enough if the conclusion is
warranted by the combined and cumulative force of all the incriminating
circumstances. Id. (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993)).
The jury may draw inferences from circumstantial evidence, but it may not
draw conclusions based on speculation. Id. at 360 (citing Jackson, 443 U.S. at
319, 99 S. Ct. 2781 at 2789). An inference is a conclusion deducted from facts.
Hooper, 214 S.W.3d at 16. Speculation is mere theorizing or guessing about the
possible meaning of facts. Id.
C. Analysis
To prove that Boldon murdered Weyrick, the State had to prove that Boldon
knowingly or intentionally caused Weyrick’s death or intended to cause Weyrick
serious bodily injury and committed an act clearly dangerous to human life that
caused Weyrick’s death. See TEX. PENAL CODE § 19.02(b)(1), (2); Temple, 390
S.W.3d at 359.
We conclude the evidence supports a rational inference that Boldon
murdered Weyrick. First, there is evidence that Weyrick was at Boldon’s
apartment around the time of her death. Dr. Flores and Dr. Love testified that
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Weyrick died one or two days before the June 2 car fire. Surveillance video from
May 31 shows a man with Boldon’s coloring leaving Renaissance Village, the
complex in which Boldon lived, at 2:48 a.m. Weyrick’s phone records for May 31
indicate that she received a phone call from a pay phone near Renaissance Village
at 2:51 a.m. The surveillance video shows the same man who left Renaissance
Village returning to the apartment complex at 3:02 a.m. and a car identical to
Weyrick’s entering the apartment complex at 3:24 a.m. Martin’s testimony places
Boldon at his apartment between 3:00 a.m. and 6:00 a.m., at which time Boldon
paid Martin with bloody money, which Boldon explained was bloody because he
had beaten up his girlfriend. Weyrick’s phone records indicate that she went to
Boldon’s apartment complex in the middle of the night, after getting a 2:51 a.m.
call, and that the last four phone calls made from her phone were made between
6:29 a.m. and 6:31 a.m. to Martin, whom Weyrick had never previously called and
who testified he did not know Weyrick. Another witness, Scally, testified that he
gave Boldon Weyrick’s phone number because Boldon was interested in meeting
someone.
The DNA evidence demonstrated that Weyrick’s blood was found inside
Boldon’s apartment. Officer Smith testified that he collected carpet samples from
Boldon’s apartment that appeared to be stained with blood. Head confirmed the
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presence of blood and testified that DNA extracted from the carpet was a match to
DNA extracted from Weyrick’s body.
Finally, there is evidence that Boldon attempted to destroy evidence to
conceal his guilt. Surveillance video shows a man with Boldon’s coloring and a
tattoo on his shoulder purchasing a Walmart water bottle like the Walmart water
bottle found in the Renaissance Village parking lot to which the accelerant
detection dog alerted. The receipt for the transaction shows the sale occurred half
an hour before the fire began. Also, Officer Smith testified that the carpet in
Boldon’s apartment had been cleaned in an attempt to conceal the bloodstains. A
clean-up effort is also referenced in the jailhouse letter that is the subject of
Boldon’s third issue.
Boldon contends that the State’s failure to prove motive and HPD’s failure
to find the murder weapon render the evidence insufficient. But motive is not an
element of murder and, therefore, is not required for a conviction. See Temple, 390
S.W.3d at 360; Mays v. State, 318 S.W.3d 368, 381 (Tex. Crim. App. 2010).
Similarly, the discovery of a murder weapon is not required for a conviction. See
Temple, 390 S.W.3d at 363 (holding evidence was legally sufficient to support
murder conviction although murder weapon was never recovered).
Viewing this evidence in the light most favorable to the verdict, we conclude
that a rational juror could have found that Boldon intentionally or knowingly
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caused Weyrick’s death or intended to cause her death and committed an act
clearly dangerous to human life that caused her death. Accordingly, we hold the
evidence was legally sufficient to convict Boldon. See Fountain v. State, 401
S.W.3d 344, 355 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (holding
evidence of defendant’s proximity to complainant was legally sufficient to support
murder conviction where, in addition to other facts, defendant was last-known
person to see child alive and child was in defendant’s care night before and day of
child’s disappearance); Torres v. State, 343 S.W.3d 297, 302 (Tex. App.—Eastland
2011, pet. ref’d) (holding that circumstantial evidence alone was legally sufficient
to convict the defendant in part because law enforcement found the complainant’s
DNA on the defendant’s clothing and gun); Winningham v. State, 334 S.W.3d 289,
308–09 (Tex. App.—Fort Worth 2010, pet. ref’d) (holding evidence legally
sufficient to support murder conviction where complainant was found burned and
wrapped in blue tarp, Medical Examiner testified complainant died from gunshot
wounds and was dead before being set on fire, receipt from Academy sports store
near defendant’s apartment listing two purchases, a tarp and a rope, was found near
body, rope was found in Academy sports bag in defendant’s apartment, and
complainant’s blood was found in defendant’s truck); Wilson v. State, 195 S.W.3d
193, 203–05 (Tex. App.—San Antonio 2006, no pet.) (holding evidence was
legally sufficient to support murder conviction where, in addition other evidence,
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neighbor’s testimony placed vehicle of same make and model as defendant’s in
complainant’s driveway at approximate time of murder and defendant’s cell-phone
records indicated defendant was traveling across town to within a few miles of
complainant’s home).
We overrule Boldon’s first and second points of error.
II. Admission of the Jailhouse Letter
In his third point of error, Boldon contends the trial court erred in admitting
a letter the State contends he wrote while confined in Harris County Jail.
Specifically, Boldon contends the letter was not properly authenticated under
Texas Rule of Evidence 901(a). See TEX. R. EVID. 901(a).
A. Standard of Review
We review the trial court’s decision to admit evidence for an abuse of
discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Our
review is deferential. Id. We will not interfere with the trial court’s ruling if the
ruling is at least within the zone of reasonable disagreement. Id.
B. Applicable Law
Under Texas Rule of Evidence 104(a), whether to admit evidence at trial is a
preliminary question to be decided by the trial court. Id. at 637–38. A bedrock
condition of admissibility is the relevance of the evidence to an issue in the case.
Id. at 638 (citing TEX. R. EVID. 402). Evidence is not relevant if it is not
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authentically what its proponent claims it to be. Id. Texas Rule of Evidence
901(a) requires the proponent to make a threshold showing that the evidence is
what the proponent purports it to be. TEX. R. EVID. 901(a). Whether the proponent
has crossed this threshold is one of the preliminary questions of admissibility
contemplated by Rule 104(a). Tienda, 358 S.W.3d at 637–38. The trial court
should admit proffered evidence on the introduction of evidence sufficient to
support a finding of authenticity. Id. (citing TEX. R. EVID. 104(b)). The ultimate
question, whether the evidence is what the proponent claims, then becomes a
question for the fact finder. Id. In performing its Rule 104 gate-keeping function,
the trial court itself need not be persuaded that the proffered evidence is authentic.
Id. The preliminary question for the trial court is simply whether the proponent
has supplied sufficient facts to support a reasonable jury determination that the
evidence is what the proponent claims. Id. (citing Druery v. State, 225 S.W.3d
491, 502 (Tex. Crim. App. 2007)).
Evidence may be authenticated in a number of ways, including a showing of
distinctive internal characteristics: appearance, contents, substance, internal
patterns, or other distinctive characteristics, taken in conjunction with
circumstances. TEX. R. EVID. 901(b)(4); see also Gardner v. State, 306 S.W.3d
274, 293 (Tex. Crim. App. 2009) (holding proponent sufficiently authenticated
robe as that worn by complainant in murder prosecution where paramedic testified
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she recognized distinctive jagged marks near front zipper caused by paramedic’s
use of trauma shears to remove robe from complainant and blood stains near neck).
C. Analysis
We conclude the trial court did not abuse its discretion in admitting the
jailhouse letter because the record reveals sufficient facts to support a reasonable
jury’s determination that the letter was in fact a letter written by Boldon. Boldon
was in the jail in which the letter was found, and the writer identified himself as
Boldon. The letter indicated Boldon’s jail cell as the return address, and bore
Boldon’s SPN—a unique number assigned to Boldon to identify him within Harris
County Jail. Additionally, the envelope containing the letter was addressed to
Boldon’s mother at Boldon’s parents’ house, and the letter was written to a woman
who received mail at Boldon’s apartment. Finally, the letter discussed facts
seemingly related to Weyrick’s murder.
Boldon argues the State failed to authenticate the letter in part because the
State failed to present testimony from a witness with personal knowledge or
handwriting analysis evidence. While Texas Rule of Evidence 901(b)
acknowledges that testimony from a witness with knowledge and handwriting
analysis are means by which a proponent can authenticate evidence, neither of
these is required. See TEX. R. EVID. 901(b)(1)–(2). Moreover, absent evidence of
tampering or other fraud, the mere possibility that someone other than Boldon
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could have written the letter will not prevent us from finding that a reasonable
juror could evaluate whether the evidence was what the State claimed. See Druery,
225 S.W.3d at 503. We hold that the trial court did not err in admitting the letter.
See id. (defendant’s letter was properly authenticated where the defendant was in a
position to have mailed the letter from jail, the writer identified himself as the
defendant, and the letter bore defendant’s fingerprints and was addressed to the
defendant’s cousin, discussed facts known to the defendant about his case, and
stated the return address was false because the writer did not want jail staff to read
the letter); Flores v. State, 299 S.W.3d 843, 856–57 (Tex. App.—El Paso 2009,
pet. ref’d) (holding State properly authenticated letter where letter was intercepted
from defendant’s mail, was signed with defendant’s name, was addressed and sent
to a woman with whom defendant had a personal relationship, indicated jail in
which defendant was confined as return address, and bore defendant’s SPN
number).
We overrule Boldon’s third point of error.
III. Motion to Suppress
In his fourth point of error, Boldon contends the trial court erred in denying
his motion to suppress a buccal swab of his cheek, the blood-stained carpet
samples on which Head confirmed the presence of Weyrick’s DNA, and Boldon’s
mail. Boldon’s motion to suppress challenged the affidavit supporting the search
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warrant for lack of probable cause. Boldon contends the trial court erred in
denying his motion because it never reviewed the affidavit.
“When a defendant objects to the court admitting evidence on the ground
that it was unlawfully seized and the State relies on a search warrant, in the
absence of a waiver, reversible error will result unless the record reflects that the
warrant was exhibited to the trial judge.” Cannady v. State, 582 S.W.2d 467, 469
(Tex. Crim. App. [Panel Op.] 1979); see Miller v. State, 736 S.W.2d 643, 648
(Tex. Crim. App. 1987) (en banc) (holding that once warrant and supporting
affidavit are produced by State and exhibited to trial court, it is the responsibility of
the defendant to see that the warrant and the supporting affidavit are in the record
if they are to be reviewed on appeal). “[I]f defense counsel desires a review of the
search warrant and affidavit on appeal, it is necessary for him to offer for the
record on a bill of exception copies of the search warrant and of the affidavit.”
Cannady, 582 S.W.2d at 469.
The record reflects that the trial court reviewed both the search warrant and
the supporting affidavit. Because the trial court reviewed the affidavit, Boldon was
required to ensure a copy of the affidavit was included in the record in order to
preserve his challenge to the affidavit for appellate review. See id. The record
does not include a copy of the affidavit. Accordingly, we hold Boldon failed to
preserve this issue for our review. See id.; Miller, 736 S.W.2d at 648.
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We overrule Boldon’s fourth point of error.
Conclusion
We affirm the trial court’s judgment.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle
Do not publish. TEX. R. APP. P. 47.2(b).
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