Traymone Edward White v. the State of Texas ( 2022 )

Opinion issued July 12, 2022.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-20-00238-CR
———————————
TRAYMONE EDWARD WHITE, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 177th District Court
Harris County, Texas
Trial Court Case No. 1527803
MEMORANDUM OPINION
A jury convicted appellant Traymone Edward White of the first degree felony
offense of murder and assessed his punishment at fifty years’ incarceration. On
appeal, Appellant argues (1) the trial court erroneously admitted two out-of-court
eyewitness statements made to law enforcement based on the doctrine of forfeiture
by wrongdoing, thereby denying Appellant his Sixth Amendment right to
confrontation, or (2) alternatively, the trial court abused its discretion by admitting
the out-of-court statements because they constitute inadmissible hearsay.
We affirm.
Background
On October 19, 2016, following an altercation between Traymone Edward
White (“White”) and Julius Allen (“Allen”), White shot and killed Allen. The
Houston Fire Department EMS (“EMS”) and Houston Police Department were
dispatched to the scene of the shooting at 10:38 p.m. and 10:40 p.m., respectively.
EMS arrived at the scene at 10:42 p.m. and pronounced Allen dead at 10:48 p.m.
White was charged with murder and tried twice before a jury. White did not
dispute shooting Allen. Rather, his counsel argued White acted in self-defense and
in defense of a third party. The first trial resulted in a mistrial. Six months later, at
the conclusion of the second trial, the jury found White guilty of murder, and he was
sentenced to fifty years in prison.
A. The Altercation and Shooting
On October 19, 2016, at around 10:00 p.m., Allen returned to his apartment
complex and parked his Tahoe near three of his acquaintances or neighbors, Derrick
Gilbert (“Gilbert”), Trevion Coleman (“Coleman”), and Cornelius Evans
2
(“Evans”).1 Gilbert, Coleman, and Evans were standing with White near the parking
lot of the apartment complex. White did not live at the apartment complex but had
just arrived and parked his car near the trio in the space next to Allen’s truck.2
Coleman told Gilbert that White and Allen had “got[ten] into it earlier that day” and
they were “about to fight.”
After parking his Tahoe, Allen left to his apartment. He returned a few
minutes later wearing tennis shoes and approached White, asking “What’s up?”
White responded that he did not want to fight. Allen then hit or punched White in
the face and the two men “tussled” briefly and exchanged more words. White then
walked to his car, threw his hat inside the trunk, got back in the driver’s seat of his
car and began to back his car out of the parking spot. Gilbert testified he believed
the fight was over at that point.
As White was backing out, Allen began telling White to leave and taunting
him. White stopped the car and drove back to the parking spot. Allen began to
approach White’s car and was standing near the car when Gilbert heard nine or ten
1
The statements in this section are primarily taken from Derrick Gilbert’s trial
testimony and are generally consistent with statements Trevion Coleman and
Cornelius Evans gave to police the night of the shooting.
2
White is Coleman’s cousin and a friend or acquaintance of Gilbert and Evans.
White had a passenger sitting in the front seat of his car who was identified at trial
as Artie Francis. Francis never got out of White’s car.
3
gunshots.3 According to Gilbert, he, Coleman, and Evans ran off when they heard
the gunshots. After White drove away, the three men returned and checked on Allen,
who was lying on his side in the parking lot with gunshot wounds and gasping for
air. Coleman ran to Allen’s apartment. He awoke Allen’s wife and told her White
had shot her husband. Allen’s wife ran outside and found Allen on the ground next
to his truck. Evans told Allen’s wife that White had shot Allen. Witnesses called
911, but Allen died before EMS arrived a few minutes later.
Sergeant J. Rexroad with the Houston Police Department (“Sergeant
Rexroad”) was one of the first responders to arrive at the scene. He testified he was
dispatched to the scene of the shooting at 10:40 p.m. and he arrived 11 minutes later.
As he was “securing the scene and trying to preserve evidence,” Sergeant Rexroad
located and spoke to Coleman and Evans. Homicide Detective E. Aguilera
(“Detective Aguilera”) with the Houston Police Department arrived at the apartment
complex about an hour later. He interviewed Coleman, Evans, and Gilbert. White,
who had fled the scene, was later arrested, and charged with Allen’s murder.
3
When they spoke to police after the shooting, Gilbert, Coleman, and Evans denied
seeing Allen with a gun or brandishing a gun at White. White told police Allen and
Coleman had been passing a gun back and forth the night Allen was shot. White
also claimed Allen shot at him first and then White returned fire. Despite stating he
had not seen Allen brandish a gun before he was shot and expressly rejecting the
idea that White had been acting in self-defense when he shot Allen, Evans testified
at trial that he saw Allen shoot at White. The jury found that White had not acted
in self-defense or in defense of a third party when he shot Allen. White is not
challenging the sufficiency of the evidence supporting the jury’s finding on appeal.
4
B. The Article 38.49 Hearing
White was first tried for murder before a jury in August 2019. For reasons
not apparent from the record, the trial court granted White’s motion for mistrial
before the State closed its case. Gilbert testified for the State during the first trial.
The State also tried to call Coleman as a witness, but despite repeated efforts to
locate and serve him with a subpoena, the State could not locate him.
The State retried White for murder six months later in March 2020. Two
months before White’s second trial began, Gilbert was murdered. The State offered
the transcript of Gilbert’s sworn testimony from the first trial into evidence. The
trial court admitted the testimony without objection. Evans also testified. Coleman,
however, was once again unavailable to testify, this time, according to the State, for
other reasons.
After the jury was selected for the second trial, the State informed the trial
court that Coleman, one of the State’s witnesses, had “been threatened if he does
testify, maybe in fear of his life [and] he may have been offered compensation to not
testify.” The State argued that White had threatened Coleman or offered to
compensate him for his testimony. Based on these allegations and the State’s alleged
inability to secure Coleman’s testimony at trial, the State moved to admit two
separate out-of-court statements from Coleman under the doctrine of forfeiture by
wrongdoing. The two out-of-court statements consisted of a (1) a video recording
5
of a 90 second statement Coleman gave to Sergeant Rexroad the night of the
shooting (State’s Exhibit 7), and (2) an audio recording of a statement Coleman gave
to Detective Aguilera at 12:05 a.m. that same night (State’s Exhibit 76).
Article 38.49 of the Texas Code of Criminal Procedure codifies what is known
as the doctrine of forfeiture by wrongdoing. Under the doctrine, a defendant who
procures the unavailability of a witness through wrongful means is barred from
asserting a violation of his Sixth Amendment right to confront the witness or
complaining about hearsay.4 Colone v. State, 573 S.W.3d 249, 264–65 (Tex. Crim.
App. 2019). The doctrine generally applies when the defendant has “engaged in
conduct designed to prevent the witness from testifying.” Giles v. California, 554
U.S. 353, 359, 365 (2008) (explaining that absence of forfeiture rule for such conduct
“would create an intolerable incentive for defendants to bribe, intimidate, or even
kill witnesses against them”).
The trial court conducted an Article 38.49 hearing outside the presence of the
jury to determine whether the doctrine applied to Coleman’s out-of-court statements
4
The Confrontation Clause of the Sixth Amendment guarantees the accused the right
to confront a witness against him. Paredes v. State, 462 S.W.3d 510, 514 (Tex.
Crim. App. 2015). Under the Confrontation Clause, “testimonial” statements—
statements that were made under circumstances that would lead an objective witness
to reasonably believe they would be available for use at a later trial—are
inadmissible at trial unless the witness who made them either takes the stand to be
cross-examined or is unavailable and the defendant had a prior opportunity to cross-
examine the witness. Id.6
thus rendering them admissible. The State called Allen’s wife, Naomi Allen
(“Naomi”), as its first witness during the hearing. Naomi testified she knew
Coleman had witnessed Allen’s shooting because Coleman went to her apartment
immediately after the shooting and told her White had shot Allen. According to
Coleman, White had been the only person who fired a weapon. Naomi testified that
she communicated with Coleman after the shooting over Instagram and he told her
he would not testify at White’s second trial. The State introduced a printout of
Coleman’s and Naomi’s Instagram messages (State’s Exhibit 93). The trial court
admitted the exhibit only for the Article 38.49 hearing.
State’s Exhibit 93 reflects that Naomi contacted Coleman on Instagram.
Naomi told him, “[I]f you love us you will come and tell [these people what] really
happened.” Naomi also told Coleman that someone was claiming Allen had shot
White. Coleman responded, “How [Allen] shot him when they say [Allen] ain’t
even have no gun.” Naomi gave Coleman a phone number which presumably
belonged to one of the prosecutors. She asked Coleman to call the prosecutor to tell
her what had happened and why he did not want to testify. Coleman replied that he
was “torn” because Allen was his best friend and White is his cousin. Coleman then
stated:
[T]his n[****] had n[****] shooting at me they had the whole f[***]ing
world screaming I’m a snitch Nd I was gone get killed if I say sum the
man even tried to pay me to testify on his behalf I told him no I got a
whole baby otw I’m not trying to end up like [Gilbert] cause that wasn’t
7
just over no f[***]ing dice game I’m sorry Family I can’t do it I didn’t
even want to do it from the jump IM SORRY Naomi
You tell her for me I fear for my life
White’s counsel interjected. He claimed that Gilbert had paid a gambling debt with
a counterfeit bill and when the person he paid discovered the bill was counterfeit,
the person returned to the apartment complex and shot Gilbert. “Again, my client
was in custody this whole time, had nothing to do with it.”
The State asked Naomi, “When [Coleman] says, The man even tried to pay
me to testify on his behalf, who is the man that he’s referring to?” White objected,
but the trial judge overruled the objection. The trial court then inquired:
Trial court: So, the man tried to pay me not to testify. How do you
take —who do you think the man he is referring to
would be?
Naomi: [White].
Trial court: Me, too. All right. I see your point. Kinds of makes
sense, doesn’t it?
Naomi: Yeah.
Trial court: It does. All right.
On cross-examination, Naomi testified that Coleman had not wanted to speak
to the police to begin with, and to her knowledge he had not been “cooperative with
either side of this case.” She also testified that she had not seen or heard White
threaten Coleman or heard White offer to pay Coleman not to testify. On redirect,
Naomi acknowledged that Coleman had spoken to police the night of the shooting,
8
but he was not willing to testify at trial. When asked, “And this is after [White],
according to [Coleman], attempted to pay him off?” Naomi answered, “Yes.”
White then called his child’s mother, Deonjanae Rogers (“Rogers”). Rogers
testified she had spoken to Coleman since the shooting, and he had never mentioned
that White had threatened him or offered to pay him not to testify. She also
confirmed that White and his nephew, Christopher McDade (“McDade”), had been
repeatedly in contact with Coleman and she claimed to have listened in on one such
conversation when Coleman apologized to White for lying. Unlike Naomi, Rogers
did not have a record of the alleged communications to support her testimony.
White’s counsel announced that he wanted to call McDade to testify. The trial
court agreed the State could continue the hearing to put on its case and he would
“keep the statement out until I hear from [McDade.]”
Sergeant Rexroad testified later that day and the State offered Coleman’s out-
of-court statement to Sergeant Rexroad into evidence. Referring to the Article 38.49
hearing held earlier that morning, White’s counsel stated, “And this is Trevion
Coleman’s statement, which we agreed you would wait until we finished the
[hearing] earlier.” The trial judge answered, “No, we didn’t agree to that about his
testimony. Don’t go there.” The trial court then held Coleman’s out-of-court
statement was admissible as “an excited utterance video, body worn camera.”
9
The trial court later resumed the Article 38.49 hearing and heard testimony
from White’s nephew McDade and a recorded jail phone call from White. After
hearing argument from counsel, the trial court found by a preponderance of the
evidence that White had forfeited his right to challenge the admission of Coleman’s
out-of-court statements under the Confrontation Clause pursuant to Article 38.49 of
the Texas Code of Criminal Procedure. Although the trial court did not state whether
its ruling applied to Coleman’s statement to Sergeant Rexroad or Detective Aguilera,
or both, the record suggests that the trial court’s Article 38.49 ruling was limited to
Coleman’s out-of-court statement to Detective Aguilera which occurred at midnight,
a little over an hour after the shooting.5
In rendering its ruling, the trial court stated in part, “I want to add that the
proximity of time suggests that our missing witness, Mr. Coleman, does not have
time to be influenced by anybody. And, yes, I understand that [White] has no [sic]
Sixth Amendment privilege on this statement; but he forfeited that by wrongdoing.
And, again, my impression is there is a lot more than a mere preponderance that
brings about this wrongdoing, Mr. Coleman not being here.” Detective Aguilera
testified the next day and Coleman’s out-of-court statement to him was admitted into
evidence over White’s objections.
5
When the trial court issued its Article 38.49 ruling, the trial court had already ruled
to admit Coleman’s out-of-court statement to Sergeant Rexroad as an excited
utterance.
10
Discussion
White argues the trial court erred by admitting Coleman’s out-of-court
statements to Sergeant Rexroad and Detective Aguilera under the doctrine of
forfeiture by wrongdoing because he did not threaten or coerce Coleman and the
admissibility of Coleman’s out-of-court statements violated his Sixth Amendment
right of confrontation. In the alternative, White argues that if the trial court did not
admit the statements based on the doctrine of forfeiture by wrongdoing, then the trial
court abused its discretion by admitting Coleman’s out-of-court statements because
they constitute inadmissible hearsay.6
The State argues that Coleman’s statement to Sergeant Rexroad was
admissible under the excited utterance exception to hearsay. It argues further that
the statement is non-testimonial and therefore, the Sixth Amendment does not bar
its admission into evidence. The State also argues that the doctrine of forfeiture by
wrongdoing applies to Coleman’s statements to both Sergeant Rexroad and
Detective Aguilera and that White failed to establish he was harmed by the
admission of the statements.7
6
Although White does not address each statement separately in his brief, we do so
for purposes of this opinion.
7
The State also contends that White waived all of his issues on appeal given, among
other things, his failure to address harm.
11
A. Standard of Review
We review a trial court’s decision to admit or exclude evidence based on an
abuse of discretion standard. Osbourn v. State, 92 S.W.3d 531, 537 (Tex. Crim.
App. 2002); Henley v. State, 493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). A trial
judge abuses his discretion when his decision falls outside the zone of reasonable
disagreement. Henley, 493 S.W.3d at 83; see also Taylor v. State, 268 S.W.3d 571,
579 (Tex. Crim. App. 2008) (stating trial court abuses its discretion only if its
decision is “so clearly wrong as to lie outside the zone within which reasonable
people might disagree”). We cannot reverse a trial court’s judgment, however,
unless the defendant suffered harm as a result of the trial court’s error. See TEX. R.
APP. P. 44.2 (setting forth separate standards for constitutional and
non-constitutional harm).
Hearsay is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.
TEX. R. EVID. 801(d). Hearsay is generally not admissible unless it falls within an
exception listed under the Texas Rules of Evidence or other rule or statute. Id. 802.
The admissibility of an out-of-court statement under an applicable exception is
within the trial court's discretion. Kesaria v. State, 148 S.W.3d 634, 641 (Tex.
App.—Houston [14th Dist.] 2004), aff’d, 189 S.W.3d 279 (Tex. Crim. App. 2006).
One such exception is the excited utterance exception.
12
An excited utterance is a “statement relating to a startling event or condition,
made while the declarant was under the stress of excitement that it caused.” TEX. R.
EVID. 803(2). The excited utterance exception stems from an assumption that the
declarant is not then capable of the kind of reflection that would enable him to
fabricate the information about which he speaks. Apolinar v. State, 155 S.W.3d 184,
186 (Tex. Crim. App. 2005). The trustworthiness of the statement is founded on the
fact that it is the event that speaks through the declarant and not the declarant relating
the event. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
The excited utterance exception applies only when (1) the statement results
from a startling occurrence that produces a state of nervous excitement in the
declarant and renders the utterance spontaneous, (2) the state of excitement
dominates the declarant's mind such that there is no time or opportunity to contrive
or misrepresent, and (3) the statement relates to the circumstances of the occurrence
preceding it. See Kesaria, 148 S.W.3d at 642. “The critical determination regarding
the excited utterance exception is whether the declarant was still dominated by the
emotions, excitement, fear, or pain of the event or condition at the time he or she
made the statement.” Villanueva v. State, 576 S.W.3d 400, 406 (Tex. App.—
Houston [1st Dist.] 2019, pet. ref’d); see also Tyler v. State, 167 S.W.3d 550, 555
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Although we can consider the
time lapse between the event and the statement, as well as whether the statement was
13
made in response to questioning, these factors are not necessarily dispositive.
Villanueva, 576 S.W.3d at 406. The question before us is “whether the statement
was made under such circumstances as would reasonably show that it resulted from
impulse rather than reason and reflection.” Id.
Generally, the erroneous admission of evidence constitutes non-constitutional
error, subject to a harm analysis requiring reversal only if the error affected the
substantial rights of the accused. See TEX. R. APP. P. 44.2(b); Gonzalez v. State, 544
S.W.3d 363, 373 (Tex. Crim. App. 2018).
B. Coleman’s Statement to Sergeant Rexroad
The trial court admitted a videotaped statement Coleman gave to Sergeant
Rexroad shortly after the shooting. (State’s Exhibit 7). The statement is about 90
seconds long and was recorded by another officer’s body worn camera.
Sergeant Rexroad was one of the first HPD officers to arrive at the scene. He
testified he was dispatched to the scene at 10:40 p.m. and he arrived at the apartment
complex nine minutes later at 10:49 p.m. When he arrived at the scene, Sergeant
Rexroad did not know who had been involved in the shooting. He also did not have
a description of the shooter or know the shooter’s whereabouts. Sergeant Rexroad
testified that his initial concern was “get[ting] a suspect description as quickly as I
could, primarily to let us know what we’re looking for, what they looked like, names,
if they are in a vehicle” to “put that information out to the dispatcher and to other
14
officers” to assist apprehension and protect unsuspecting officers. Sergeant Rexroad
testified he “[a]bsolutely” treated the scene as an “ongoing emergency when [he]
first arrived[.]”
Sergeant Rexroad testified he located and spoke to two eyewitnesses:
Coleman and Evans. When asked to describe Coleman’s demeanor, Sergeant
Rexroad testified:
[H]e was pretty emotional. He was sweating. He couldn’t stand still.
He was swaying back and forth a lot, rocking back and forth. His
breathing was a little labored. And he had some issues with providing
me answers to basic, you know, questions like his birthdate. He was
struggling to get the words out and almost, you know, on the verge of
becoming very emotional.
When asked if Coleman “was still very much under the excitement of witnessing the
shooting,” Sergeant Rexroad agreed that he was. Sergeant Rexroad then sponsored
his 90 second recorded conversation with Coleman, which was captured on another
officer’s body worn camera. The State offered the recorded statement into evidence,
at which time White objected to its admission based on lack of authentication.
Referring to the Article 38.49 hearing held earlier that morning, White’s counsel
stated, “And this is Trevion Coleman’s statement, which we agreed you would wait
until we finished the [hearing] earlier.” The trial judge answered, “No, we didn’t
agree to that about his testimony. Don’t go there.” The trial court then held
Coleman’s statement was admissible as “an excited utterance video, body worn
camera” and admitted the statement into evidence.
15
The recorded interaction between Sergeant Rexroad and Coleman, which was
less than 90 seconds long, was published to the jury. In the video, Coleman tells
Sergeant Rexroad that White shot his “brother” Allen “from the car, from inside it.”
Sergeant Rexroad then asks for Coleman’s identifying information, including his
name, address, phone number, and birthdate, which Coleman provides. Coleman
appears to be sniffling and he is swaying from side to side and his voice begins to
break. Sergeant Rexroad tells him to “take a breath, man, [it’s] okay.” “I know its
tough man, but the more info we get from you, the better chance we have of finding
the guy.” Coleman then identifies the shooting victim as Allen and tells Sergeant
Rexroad where Allen lives, but he cannot remember Allen’s birthdate. When asked
to identify the person “you said shot him,” Coleman reiterates that it was White.8
Sergeant Rexroad testified that Coleman’s and Evan’s statements were consistent
because neither witness suggested there were two shooters, or that a shootout
occurred.
We conclude Coleman’s statement to Sergeant Rexroad was an excited
utterance and thus admissible. That Coleman’s statements were made in response
to Sergeant Rexroad’s questioning does not make the statements inadmissible under
the excited utterance exception; it is only a factor for courts to consider. See
8
White does not dispute he shot Allen. The issue at trial was whether White shot
Allen in self-defense or defense of another.
16
Villanueva, 576 S.W.3d at 406. The key question is whether Coleman was still
dominated by the emotions, excitement, fear, or pain of the shooting when he gave
his statements to Sergeant Rexroad. Sergeant Rexroad’s testimony that Coleman
was “pretty emotional,” “sweating,” his “breathing was a little labored,” “[h]e
couldn’t stand still,” and was “swaying back and forth a lot, rocking back and forth,”
are supported by the recorded statement and it supports the trial court’s
determination that Coleman was still dominated by the emotions of the shooting
when he made his statements to Sergeant Rexroad. See Zuliani, 97 S.W.3d at 595;
Villanueva, 576 S.W.3d at 406. The fact Sergeant Rexroad arrived 11 minutes from
time of dispatch and located Coleman as he was “securing the scene and trying to
preserve evidence” also supports the trial court’s finding. See Apolinar, 155 S.W.3d
at 185 (holding statement made four days after exciting event admissible as excited
utterance); see also Adams v. State, No. 06-99-00016-CR, 2000 WL 639941, at *1–
2 (Tex. App.—Texarkana May 19, 2000, no pet.) (not designated for publication)
(holding statements made hour to hour and half after event were admissible under
excited utterance exception to hearsay).
Under these circumstances, we conclude the trial court did not abuse its
discretion in admitting Coleman’s out-of-court statement to Sergeant Rexroad under
the excited utterance exception. See Campos v. State, 186 S.W.3d 93, 99–100 (Tex.
App.—Houston [1st Dist.] 2005, no pet.) (holding complainant’s statements to
17
police officers, made forty-three minutes after robbery, were admissible under
excited utterance exception when statements were made in response to questioning
and officers testified that complainant was crying, upset, and frightened).9
C. Coleman’s Statement to Detective Aguilera
The trial court also admitted an audio recording of the out-of-court statement
Coleman gave to Detective Aguilera the night of the shooting. The trial court
admitted the statement under the doctrine of forfeiture by wrongdoing based on its
finding that White had engaged in conduct that intended to, and did, result in
Coleman’s unavailability to testify.
To the extent White challenges the admission of Coleman’s statement to
Detective Aguilera based on the Confrontation Clause or the doctrine of forfeiture
by wrongdoing, we need not address whether the trial court erred in admitting
Coleman’s statement on these grounds. Even were we to conclude the trial court
erred by admitting Coleman’s statement to Detective Aguilera, White’s brief fails to
address in any way how he was harmed by its admission, an element he is required
to establish on appeal. See Edwards v. State, No. 01-20-00064-CR, 2020 WL
6435769 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020, no pet.) (mem. op., not
9
To the extent White argues on appeal the trial court erred in admitting Coleman’s
statement to Sergeant Rexroad under the doctrine of forfeiture by wrongdoing or
the Confrontation Clause, White fails to argue in any way how he was harmed by
the admission of this statement, and therefore, for the same reasons discussed in the
Subsection C, White waived these issues.
18
designated for publication) (explaining that to prevail on appeal, appellant had to
demonstrate both that trial court abused its discretion in admitting witness’
out-of-court statements under doctrine of forfeiture by wrongdoing and that such
error was harmful).
To assert an issue on appeal, an appellant’s brief “must contain a clear and
concise argument for the contentions made, with appropriate citations to authorities
and to the record.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal
if he does not provide supporting arguments, substantive analysis, and appropriate
citations to authorities and to the record. See id.; Cardenas v. State, 30 S.W.3d 384,
393 (Tex. Crim. App. 2000); Chaves v. State, 630 S.W.3d 541, 555 (Tex. App.—
Houston [1st Dist.] 2021, no pet.). An appellate court has no obligation to construct
and compose issues, facts, and arguments with appropriate citations to authorities
and the record for the appellant. See Wolfe v. State, 509 S.W.3d 325, 343 (Tex.
Crim. App. 2017); see also Chaves, 630 S.W.3d at 555. A brief that does not apply
the law to the facts does not comply with Texas Rule of Appellate Procedure 38.1
and presents nothing for our review. See Swearingen v. State, 101 S.W.3d 89, 100
(Tex. Crim. App. 2003); see also Chaves, 630 S.W.3d at 555.
In Chaves v. State, 630 S.W.3d 541 (Tex. App.—Houston [1st Dist.] 2021, no
pet.), this Court held that a defendant waived his challenge to the admission of
evidence on appeal because he failed to brief adequately his assertion that he was
19
harmed because of the alleged error. Id. at 557–58; see Cardenas, 30 S.W.3d at 393(holding defendant waived issue on appeal because he failed to address whether
alleged error was harmless); Wilson v. State, 473 S.W.3d 889, 900–01 (Tex. App.—
Houston [1st Dist.] 2015, pet. ref’d) (“Here, we do not address whether the trial court
erred in admitting the complained-of . . . evidence because even were we to conclude
that the trial court erred in admitting such evidence, appellant, in his brief, does not
argue that he was harmed by its admission.”). We held that Chaves failed to brief
his evidentiary issue adequately because he “provides[ed] only two conclusory
sentences, without citation to authority, asserting that he ‘suffered harm as a result
of the trial court’s admission of’ State’s Exhibits 13 and 14 because ‘the recordings
were on the jury’s mind while they deliberated.’” Id. at 558. The Court explained
Chaves’ brief “contain[ed] no argument, explanation, substantive analysis, or
citation to authorities to show that he was harmed by the trial court’s purported
erroneous admission of the State’s exhibits” and it was not our role to make his
arguments for him. Id.We reached the same result in Edwards v. State, No. 01-20-00064-CR, 2020
WL 6435769 (Tex. App.—Houston [1st Dist.] Nov. 3, 2020, no pet.) (mem. op., not
designated for publication). In Edwards, the defendant argued that the trial court
committed reversible error by admitting a witness’ out-of-court statements under the
doctrine of forfeiture by wrongdoing. Id. at *2. We explained that “to be entitled to
20
reversal on this issue, Edwards must demonstrate that the trial court abused its
discretion in admitting [the witness’] out-of-court statements pursuant to the doctrine
of forfeiture by wrongdoing and that such error was harmful.” Id. We held Edwards
failed to brief this issue adequately because he only made a cursory statement that
the admission of the evidence was “unfairly prejudicial,” and he did not “cite to the
record, make any argument, or provide any supporting legal authority to explain how
or why the admission of” this evidence resulted in harm. Id. at *3.
White likewise waived any complaint as to the admission of Coleman’s
statement to Detective Aguilera. White argues in his brief that “[t]he State used
Coleman’s testimony to disprove [White’s] self-defense theory” and that the
admission of “any 38.49 evidence . . . deprived [White] of a fair trial.” White then
concludes, without more, that the admission of Coleman’s out-of-court statements
had an “impact on Appellant’s substantial rights.” This is the entirety of White’s
argument that the admission of Coleman’s statements was harmful.
Like in Edwards and Chaves, White does not cite to the record, identify the
applicable standard for assessing harm, make a substantive argument, or provide any
supporting legal authority to explain how or why the admission of Coleman’s
statements resulted in harm. He likewise does not identify which of the two Coleman
statements he specifically complains about or what portions of the statements had an
“impact on [White’s] substantial rights.” At most, White provides conclusory,
21
cursory allegations of harm which are insufficient to meet the requirements of Rule
38.1.
Because White failed to brief the issue adequately by identifying the harm he
suffered due to the trial court’s admission of Coleman’s statement to Detective
Aguilera, we hold White waived this issue.10 See Cardenas, 30 S.W.3d at 393(holding issue inadequately briefed where “appellant d[id] not address the question
of whether the alleged error . . . was harmless”); Wilson, 473 S.W.3d at 901 (holding
defendant waived evidentiary challenge because he did not “identify[] the harm that
he suffered as a result of the admission of the complained-of evidence”); Chaves,
630 S.W.3d at 555; see also Edwards, 2020 WL 6435769 at *2–3.
We overrule White’s challenge to the admission of Coleman’s out-of-court
statements.
10
The same is true with respect to the admission of Coleman’s statement to Sergeant
Rexroad. White does not make any harm analysis as to that statement. Thus, to the
extent White claims the trial court erred in admitting the statement (under the
doctrine of forfeiture by wrongdoing, or in violation of the Confrontation Clause),
White waived those issues.
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Conclusion
We affirm the trial court’s judgment.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Goodman, Rivas-Molloy, and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).
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