Todric McDonald v. State ( 2020 )

IN THE
TENTH COURT OF APPEALS
No. 10-19-00067-CR
TODRIC MCDONALD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2014-1419-C1
MEMORANDUM OPINION
In two issues, appellant, Todric Deon McDonald, challenges his conviction for
capital murder. See TEX. PENAL CODE ANN. § 19.03 (West Supp. 2019). Because we
overrule both of McDonald’s issues, we affirm.1
1As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.
I. THE SELECTION OF AN ALTERNATE JUROR AND THE SEATING OF THE ALTERNATE
ON THE JURY
In his first issue, McDonald contends that the trial court erred in seating
venireperson number 44 as the alternate juror and ultimately as juror number 12 contrary
to the provisions of article 35.15(d) of the Code of Criminal Procedure. See TEX. CODE
CRIM. PROC. ANN. art. 35.15(d) (West 2006).2
The record reflects that the trial court decided to seat an alternate juror in addition
to the twelve jurors in this capital-murder in which the State did not seek the death
penalty. The trial court determined that the alternate juror would be selected from the
three members of the venire panel after the last juror had been seated as one of the twelve
jurors. On appeal, McDonald asserts that the alternate juror should have been taken from
the next three venirepersons after the “strike zone.” This issue is of importance to
McDonald because the morning before opening statements were made, a juror was
excused for medical reasons and the alternate was seated as a juror.
2 Article 35.15(d) of the Code of Criminal Procedure provides:
The State and the defendant shall each be entitled to one peremptory challenge in addition
to those otherwise allowed by law if one or two alternate jurors are to be impaneled and
two peremptory challenges if three or four alternate jurors are to be impaneled. The
additional peremptory challenges provided by this subsection may be used against an
alternate juror only, and the other peremptory challenges allowed by law may not be used
against the alternate juror.
TEX. CODE CRIM. PROC. ANN. art. 35.15(d) (West 2006).
McDonald v. State Page 2
However, the record shows that McDonald did not object to either the process for
selecting the alternate juror or the seating of the alternate as a juror when another juror
was excused for medical reasons. Nor did McDonald attempt to exercise a peremptory
strike to the selection of the alternate or the seating of the alternate on the jury.
To preserve error for appellate review, a party must make a timely request,
objection, or motion and state the grounds for the ruling that the complaining party
sought from the trial court with sufficient specificity to make the trial court aware of the
complaint, unless the specific grounds were apparent from the context. See TEX. R. APP.
P. 33.1(a)(1); see also Smith v. State, 907 S.W.2d 522, 530 n.6 (Tex. Crim. App. 1995) (noting
that, under article 35.15(d), peremptory strikes for alternates and strikes for the main jury
are totally separate and may not be used in lieu of each other and concluding that the
issue technically was not preserved because “appellant had not actually run out of
peremptories”). Because the record does not demonstrate that McDonald objected or
attempted to exercise a peremptory strike to the selection of the alternate juror or the
seating of the alternate as a juror, we cannot say that McDonald preserved anything for
appellate review in this issue. See TEX. R. APP. P. 33.1(a)(1); see also Smith, 907 S.W.2d at
530 n.6. Accordingly, we overrule McDonald’s first issue.
II. EXTRANEOUS-OFFENSE EVIDENCE
In his second issue, McDonald argues that the trial court abused its discretion by
admitting extraneous-offense evidence that he had shot at individuals other than the
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murder victims before the murders; that he had stolen a vehicle; and that he had evaded
arrest or detention by using a motor vehicle. Specifically, McDonald asserts that the
admitted extraneous-offense evidence did not satisfy the requirements for admission
under Texas Rules of Evidence 403 and 404(b). See TEX. R. EVID. 403, 404(b).
A. Standard of Review
We review the trial court’s admission of extraneous-offense evidence for an abuse
of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009). If the trial
court’s ruling is within the zone of reasonable disagreement, there is no abuse of
discretion. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim. App. 2005). A trial court’s
ruling on the admissibility of an extraneous offense is generally within this zone if the
evidence shows that: (1) an extraneous transaction is relevant to a material, non-
propensity issue; and (2) the probative value of the evidence is not substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the
jury. De La Paz, 279 S.W.3d at 344. “Furthermore, if the trial court’s evidentiary ruling is
correct on any theory of law applicable to that ruling, it will not be disturbed even if the
trial judge gave the wrong reason for his right ruling.” Id.
B. Texas Rule of Evidence 404(b)
Texas Rule of Evidence 404(b) expressly provides that evidence of other crimes,
wrongs, or acts is not admissible to prove the character of the defendant in order to show
he acted in conformity therewith. TEX. R. EVID. 404(b). This rule codifies the common-
McDonald v. State Page 4
law principles that a defendant should be tried only for the offense for which he is
charged and not for being a criminal generally. See Rogers v. State, 853 S.W.2d 29, 32 n.3
(Tex. Crim. App. 1993); see also Segundo v. State, 270 S.W.3d 79, 87 (Tex. Crim. App. 2008)
(explaining that a defendant is generally to be tried only for the offense charged, not for
any other crimes).
Extraneous-offense evidence, however, may be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident. TEX. R. EVID. 404(b). The list of examples in Rule 404(b)
is not exhaustive. See Prible, 175 S.W.3d at 731. For example, extraneous-offense evidence
may be admissible to demonstrate conduct by a defendant that indicates a consciousness
of guilt. See Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.); see also
Urtado v. State, 605 S.W.2d 907, 915 (Tex. Crim. App. 1980). An extraneous offense may
also be admissible to show identity when identity is at issue in the case, or when the
defense cross examines witnesses or alleges that someone else committed the crime. See
Page v. State, 213 S.W.3d 332, 336 (Tex. Crim. App. 2006); Lane v. State, 933 S.W.2d 504, 519
(Tex. Crim. App. 1996).
“Whether extraneous[-]offense evidence has relevance apart from character
conformity, as required by Rule 404(b), is a question for the trial court.” Moses v. State,
105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The trial court’s Rule 404(b) ruling admitting
evidence is generally within the zone of reasonable disagreement “if there is evidence
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supporting that an extraneous transaction is relevant to a material, non-propensity
issue.” Devoe v. State, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).
In the instant case, the State proffered the testimony of two eyewitnesses—Ruby
Murray and Lisa Muniz—to the shootings of Justin and Ulyssess Gonzales. However,
during cross-examination, defense counsel established that both Murray and Muniz were
using methamphetamine at the time of the shootings and argued that both were high and
unreliable in identifying McDonald as being involved in the shooting. The State also
proffered the testimony of Melissa Moore, who helped McDonald hide out after the
shootings and helped him hide the vehicle he was driving, which was a blue GMC Yukon
that he had stolen from Demontrae Williams at Hap’s Icehouse in Waco, Texas. Moore
also told police that McDonald admitted to killing two people as he ran out of Moore’s
house when he saw a news report on the shootings. At trial, defense counsel sought to
discredit Moore’s testimony by asserting that Moore is a “meth head” and that she is
lying and basing her testimony on hearsay. Defense counsel’s cross-examination, as well
as arguments made at trial, put identity at issue. As stated above, extraneous-offense
evidence may be admissible to show identity when identity is at issue in the case, as it
was here. See Page, 213 S.W.3d at 336; see also Lane, 933 S.W.2d at 519.
To rebut defense counsel’s identity argument, the State presented evidence of shell
casings from McDonald’s gun that was used in the shooting of Justin and Ulyssess, as
well as other crime scenes. The State’s firearms expert, April Kendrick, matched these
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casings to the weapon found in McDonald’s possession when he was apprehended in an
evading incident that transpired a few days after the shootings. The expert could also
match that weapon with casings found at two other shootings, including when McDonald
shot at Micah McNeill while stealing his gun and when McDonald shot at Williams while
stealing Williams’s blue GMC Yukon.
The State also presented evidence of the time frame of the shootings, as well as the
extraneous offenses. The armed robbery that resulted in the theft of Williams’s blue GMC
Yukon occurred on the evening of May 10, 2014; the aggravated assault of McNeill
occurred at 11:00 p.m. on May 12, 2014; and the shootings occurred at 4:00 a.m. on May
13, 2014. In other words, all of these events transpired within a short period of time and
showed McDonald’s plan, opportunity, and modus operandi.
Finally, evidence of the evading incident that occurred a few days after the
shooting is indicative of a consciousness of guilt for which extraneous-offense evidence
is also admissible. See Urtado, 605 S.W.2d at 915; see also Torres, 794 S.W.2d at 598.
Therefore, given that the complained-of extraneous-offense evidence was admissible for
a number of proper purposes, we conclude that the evidence was relevant for more than
just character conformity. See TEX. R. EVID. 404(b).
C. Texas Rule of Evidence 403
Next, we address McDonald’s Rule 403 argument. Evidence, though relevant, can
nonetheless be excluded when its probative value is substantially outweighed by the
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danger of unfair prejudice. See id. at R. 403. Once a trial court determines that extraneous-
offense evidence is admissible under Rule 404(b), the trial court must, on proper objection
by the opponent of the evidence, weigh the probative value of the evidence against its
potential for unfair prejudice. Montgomery v. State, 810 S.W.2d 372, 389 (Tex. Crim. App.
1991); see TEX. R. EVID. 403. Rule 403 favors admissibility of relevant evidence, and the
presumption is that relevant evidence will be more probative than unfairly prejudicial.
Montgomery, 810 S.W.2d at 389. Unfair prejudice does not mean the evidence injures the
opponent’s case—“the central point of offering evidence.” Rogers v. State, 991 S.W.2d 263,
266 (Tex. Crim. App. 1999). “Rather[,] it refers to ‘an undue tendency to suggest a
decision on an improper basis, commonly, though not necessarily, an emotional one.’”
Id. (quoting Cohn v. State, 849 S.W.2d 817, 820 (Tex. Crim. App. 1993)).
Although not limited to the following enumerated factors, courts should balance
the following under a Rule 403 analysis: (1) the probative value of the evidence; (2) the
potential of the evidence to impress the jury in some irrational, yet indelible way; (3) the
time needed to develop the evidence; and (4) the proponent’s need for the evidence.
Prible, 175 S.W.3d at 733. The trial court is presumed to have conducted a proper
balancing test if it overrules a 403 objection, regardless of whether it conducted the test
on the record. See Williams v. State, 958 S.W.2d 186, 195 (Tex. Crim. App. 1995).
As stated earlier, McDonald challenged the identity element by attacking the
reliability of the testimony of eyewitnesses Murray and Muniz based on their drug use at
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the time of the shootings. The State had a need for the complained-of extraneous-offense
evidence because it was probative on the issue of identity, and because it rebutted
McDonald’s defensive theory. See Moses, 105 S.W.3d at 626 (noting that rebuttal of a
defensive theory is one of the permissible purposes for which extraneous-offense
evidence may be admitted); see also Daggett v. State, 187 S.W.3d 444, 453-54 (Tex. Crim.
App. 2005) (stating that extraneous offenses are admissible to rebut theories raised by
testimony of a defense witness during direct examination or a State’s witness during
cross-examination). The record does show that some time was spent on developing the
complained-of extraneous-offense evidence. However, there is nothing in the record
demonstrating that this evidence impressed the jury in some irrational, yet indelible, way.
In other words, we cannot say that the extraneous-offense evidence confused, distracted,
or caused the jury to give the evidence undue weight.
Rule 403 “envisions exclusion of [relevant] evidence only when there is a ‘clear
disparity between the degree of prejudice of the offered evidence and its probative
value.’” Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (quoting Conner v.
State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We cannot say that there is a “clear
disparity” between the danger of unfair prejudice posed by the complained-of
extraneous-offense evidence and its probative value. See id.; see also Conner, 67 S.W.3d at
202. Thus, we cannot conclude that the trial court abused its discretion by admitting this
evidence over McDonald’s Rule 403 and 404(b) objections. See TEX. R. EVID. 403, 404(b);
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see also De La Paz, 279 S.W.3d at 343; Prible, 175 S.W.3d at 731. We overrule McDonald’s
second issue.
III. CONCLUSION
Having overruled both of McDonald’s issues on appeal, we affirm the judgment
of the trial court.
JOHN E. NEILL
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed January 8, 2020
Do not publish
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