Darrell Anthony Adell, Jr. v. the State of Texas ( 2023 )

Opinion issued August 3, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00439-CR
———————————
DARRELL ANTHONY ADELL, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 87429-CR
MEMORANDUM OPINION
A jury found appellant, Darrell Anthony Adell, Jr., guilty of the felony
offense of murder1 and assessed his punishment at confinement for life. In sixteen
issues, appellant contends that the evidence is legally insufficient to support his
1
See TEX. PENAL CODE ANN. § 19.02(b), (c).
conviction, his appeal should be abated, and the trial court erred in denying his
motion to suppress evidence, admitting certain evidence, and denying his motion
for mistrial and motion for new trial.
We affirm.
Background
Complainant’s Mother
Yolanda Cantu testified that she was the mother of the complainant, Trish
Rodriguez, who was thirty-nine years old at the time of her death. According to
Yolanda, after the complainant graduated college, she worked at Dow Chemical at
the Lake Jackson office. Yolanda and the complainant’s sister, Monica, previously
lived with the complainant at the complainant’s house located at 54 Greenvale
Court in Lake Jackson, Texas. When the complainant married Robert Rathkamp,
he moved into the complainant’s home with the complainant, Yolanda, and
Monica. Eventually, the complainant and Rathkamp separated and divorced after
the complainant became pregnant with appellant’s child. After becoming
pregnant, the complainant stopped “hear[ing] from” appellant, and the complainant
subsequently terminated her pregnancy.
Later, after the complainant’s divorce, the complainant and appellant entered
into a relationship, and the complainant became pregnant again with appellant’s
child. The complainant was excited about the baby and had “always wanted to
2
have a baby.” “[A]t first,” appellant was “around” during the complainant’s
pregnancy, but when the complainant found out that appellant had “another
girlfriend,” the complainant and appellant stopped “seeing each other.” Appellant
did not attend any doctors’ appointments with the complainant during her
pregnancy. The complainant’s child, T.A.A.R. (the “child”), was born on February
6, 2017. After the child’s birth, the complainant called appellant. The child lived
with the complainant, Yolanda, and Monica at the complainant’s house following
his birth.
When the complainant returned to work after the child’s birth, the child went
to “Kool Kidz” daycare. The daycare was not far from the complainant’s home—
about five minutes away. The daycare was also close to the complainant’s work,2
and the complainant would leave work during the day to visit the child and to
breastfeed him when he was an infant. The complainant “always check[ed] on [the
child] on her breaks” from work.
According to Yolanda, the complainant normally dropped the child off at
daycare, and the complainant normally picked the child up from daycare.
Occasionally, appellant would pick the child up from daycare. When the
complainant had to travel for work, appellant was responsible for dropping the
2
Yolanda testified that the complainant’s office was about ten minutes from the
complainant’s home.
3
child off at daycare in the morning because the child would be staying with
appellant while the complainant traveled.
Yolanda further testified that she and Monica continued to live with the
complainant until November 2017. And after she and Monica moved out of the
complainant’s home in November 2017, the complainant and the child lived there
together. In December 2017, Yolanda became aware that the complainant and
appellant were back in a relationship.
In January 2018, appellant moved into the complainant’s home. After
appellant moved into the complainant’s home, Yolanda’s visits with the
complainant and the child decreased, and she only visited when appellant was not
around. Appellant and the complainant remained in a relationship until December
2018.
At some point in early 2019, Yolanda learned that the complainant and
appellant were no longer in a relationship. The complainant seemed upset about
the breakup but also relieved. The complainant was the person that ended the
relationship, and she “seemed more herself” and happier. She “seem[ed] like she
was going to be able to finally move on.”
On February 9, 2019, Yolanda attended a birthday party for the child at
appellant’s house in Angleton, Texas. Appellant had purchased his house around
November 2017. In February 2019, the house appeared to be “under construction.”
4
On February 15, 2019, Yolanda saw the complainant and the child, and the
complainant told Yolanda that she had asked appellant to leave her house. The
complainant said that “she was going for full custody and child support but that
[appellant] mustn’t know until right before the [court] date.”3 The complainant
specifically told Yolanda that appellant “couldn’t know about the child support
until right before the court date,” which was supposed to be at the beginning of
March 2019. The complainant also told Yolanda that her relationship with
appellant “wasn’t meant to be.” And she said: “Mama, I can’t tell you what he did
to me. I just can’t tell you.” The complainant was trembling when she said that.
The complainant and Yolanda discussed changing the locks to the complainant’s
home, but they were not changed prior to the complainant’s death.
Yolanda subsequently saw the complainant on February 16, 2019 and on
February 17, 2019. On February 17, 2019, the complainant spent some time
loading appellant’s “stuff” from the complainant’s home into her sport utility
vehicle (“SUV”). When Yolanda left the complainant’s home on February 17,
2019, the complainant was going to go to appellant’s home to drop off his things.
Yolanda either spoke to the complainant on the telephone or communicated with
the complainant by text message on February 18, 2019. Yolanda and the
complainant made plans to spend the day together on February 22, 2019, along
3
Yolanda noted that previously in 2017, the complainant had asked for child
support, but “child support [was not] established” then.
5
with the child and Monica. The complainant also had plans to see a friend on
February 22, 2019 for a playdate with the child at about 3:00 p.m.
On February 19, 2019, the complainant came to Yolanda’s house with the
child to cook dinner. While at Yolanda’s home, the complainant discussed that
appellant would be picking up the child from daycare on February 21, 2019
because the complainant was meeting up with her friend, Bryn Mikel. But the
complainant was still going to take the child to daycare on the morning of February
21, 2019. The complainant and the child left Yolanda’s home about 8:45 p.m. or
9:00 p.m. on February 19, 2019 and went home. The complainant called Yolanda
when she arrived home that night. Before the complainant left on February 19,
2019, Yolanda reminded her to lock all the doors and windows at her house, and
the complainant responded: “Yes, [m]ama.”
On February 20, 2019, Yolanda spoke to the complainant on the telephone
twice. Yolanda believed, based on her conversations with the complainant, that the
complainant planned to eat dinner with the child at her home that night. The last
time that Yolanda spoke to the complainant was on February 20, 2019.
Yolanda explained that on February 21, 2019, she did not hear from the
complainant. At about 8:30 a.m., Yolanda became concerned because the
6
complainant had not called her that morning, which was unusual.4 Yolanda called
the complainant repeatedly and sent her multiple text messages. At 5:00 p.m.,
Yolanda left work and went straight to the complainant’s home.
When Yolanda arrived, she saw the complainant’s SUV in the driveway,
which was unusual. Yolanda went to the front door of the complainant’s house
and found it unlocked. The glass storm door attached to the wooden front door
was also unlocked and a pair of keys was in the lock of the wooden front door.
The wooden front door was slightly open, and the whole house was dark. It was
unusual for the complainant’s house to be dark if the complainant was home.
Yolanda walked into the primary bedroom. She heard “water running,” so
she went into the primary bathroom and turned on the light. She saw the
complainant’s body in the bathtub.5 When she touched the complainant, the
complainant was “ice-cold.” Yolanda started screaming, rushed to the living room,
and called for emergency assistance.6
4
Yolanda testified that the complainant called her every morning before work while
she was driving the child to daycare.
5
The trial court admitted into evidence photographs of the complainant’s body in
the bathtub.
6
The trial court admitted into evidence the audio recording of Yolanda’s telephone
call for emergency assistance. During the call, Yolanda stated that she had not
heard from the complainant all day and she had come to the complainant’s house.
The complainant was naked, “ice-cold,” and bleeding, and “[t]here was no way
that [the complainant] could have killed herself.” Yolanda stated that she did not
know the whereabouts of the child, who was two years old at the time.
7
As to the complainant’s general behaviors, Yolanda explained that the
complainant always ate healthily. She was not clumsy and was very athletic. The
complainant never left the front door open to allow a visitor to just walk into her
house. And she never left a key in her front door to allow someone to let himself
in even if she knew the person was coming over. The complainant kept her home
locked. She would not have left the front door to her house open all day.
According to Yolanda, the key that opened the wooden front door of the
complainant’s house fit the home’s other exterior doors, including the back door
and the side door in the primary bedroom; every door used the same key except for
the glass storm door that was attached to the wooden front door on the
complainant’s home. And the complainant did not drink wine or champagne in the
bathtub. As to appellant, Yolanda stated that she had never seen appellant “get
physical” with the complainant.
Complainant’s Friend Weaver
Patricia Weaver testified that she worked at Dow Chemical and she met the
complainant around 2011 or 2012. After a while of working together, she and the
complainant became friends. In 2012, the complainant was married to Rathkamp,
but she later got divorced. After the complainant’s divorce, Weaver learned that
the complainant was seeing appellant, but there were times when the complainant
and appellant “were not seeing each other.”
8
In 2016, Weaver found out that the complainant was pregnant with the child.
The complainant was excited about her pregnancy. But, when Weaver met
appellant in 2016, she felt that the complainant “was much more smitten with him
than he was with her.” In October 2016, the complainant came to speak to
Weaver, and the complainant was very upset. She told Weaver that appellant had
been cheating on her.
When it was time for the complainant to give birth to the child, Weaver
drove her to the hospital, accompanied by Yolanda and Monica. Appellant came
to the hospital after the complainant had given birth to the child.
Around February 11, 2019, Weaver spoke to the complainant about her
relationship with appellant. Weaver told the complainant that if appellant “was
cheating on her again that she should . . . get legal things settled with him with
regard[] to [the child].” Weaver and the complainant also discussed appellant
moving out of the complainant’s home. Weaver told the complainant that “it
would be best if she had an amicable split with [appellant] . . . and then she could
go on with permanent changes to her home, like changing [the] locks.”
Weaver saw the complainant on February 17, 2019, and the complainant was
very happy. By that time, appellant was living in his home in Angleton, and the
complainant was living at her house with the child.
9
When Weaver saw the complainant for lunch on February 19, 2019, though,
the complainant’s mood had shifted; she appeared concerned. Weaver saw the
complainant again on February 20, 2019, and she appeared “very antsy, very
nervous.” Weaver offered to let the complainant stay at her house on the night of
February 20, 2019, but the complainant declined the offer.
On February 21, 2019, Weaver did not see the complainant at work. Weaver
thought it was unusual that the complainant missed a work meeting that morning
because the complainant always called Weaver when she was not going to come to
work, yet she had not called.
In the afternoon, Weaver went to the complainant’s office because other
co-workers had noticed that the complainant was not at work. The complainant’s
office was dark, and the door was locked. Weaver spoke to other co-workers,
including the complainant’s supervisor, and no one had seen her at work. When
Weaver checked the complainant’s work calendar, the complainant had a full day
of meetings scheduled for that day, which she had missed.
The complainant was a responsible person, and she would not have
intentionally missed a full day of work meetings. Weaver attempted to call the
complainant and sent her text messages. Weaver and Sandra Springs, another
co-worker and friend, decided to go to the complainant’s home to see if she was
okay.
10
When Weaver arrived at the complainant’s house on February 21, 2019, it
was dark, but Weaver saw the complainant’s SUV at the house. Weaver initially
drove past the complainant’s house. When she drove back by the house, another
car was parked outside. Weaver rolled down her windows, and she could hear
“someone screaming that [the complainant] was dead.” Weaver saw Yolanda and
Monica come out of the complainant’s house.
As to the complainant generally, Weaver testified that the complainant had
surveillance video cameras installed at her home and she was able to check the
surveillance video cameras through an application on her cellular telephone. The
complainant was excited about her career and had future career goals.
Complainant’s Friend Springs
Springs testified that she worked at Dow Chemical and she met the
complainant there around 2004 or 2005. Over the years, Springs and the
complainant developed a friendship. When Springs would visit the complainant’s
home, she would “walk up to the door and knock on the glass [storm] door,” which
was usually locked. The complainant did not leave a key in the front door of her
home. And Springs never let herself into the complainant’s home herself. The
complainant kept her home well-lit.
Previously, the complainant lived with Yolanda and Monica, and eventually
Rathkamp, the complainant’s husband, moved in. After the complainant got
11
divorced, Springs learned, around 2015 or 2016, that the complainant was dating
appellant.7
In 2016, the complainant became pregnant with the child, and appellant was
the father. The complainant was very excited about the pregnancy. At the
beginning of the pregnancy, the complainant and appellant were in a relationship,
but at some point during the complainant’s pregnancy, the relationship ended.
After the child was born and the complainant had returned to work, Springs
learned that the complainant and appellant “were trying to work things out.” In
2018, appellant moved into the complainant’s house, and Yolanda and Monica
moved out. Appellant lived with the complainant for a little over a year.
Appellant moved out of the complainant’s home in February 2019.
During Springs’s last conversation with the complainant, she asked the
complainant if she would be Springs’s “backup driver to take [her] to [her] dental
surgery” on February 22, 2019 if Springs’s husband was unable to do so. The
complainant told Springs that she would rearrange her schedule for Springs if
Springs’s husband could not drive her to the surgery.
On February 21, 2019, Springs attempted to contact the complainant at work
about giving her a ride to her surgery the next day. Springs tried to contact the
complainant through an internal messaging system at work, but the system never
7
Springs noted that she later learned that the complainant had an affair with
appellant during her marriage to Rathkamp.
12
showed that the complainant was at work that day. Springs also called the
complainant and sent her text messages later in the day, but she did not receive a
response. It was unlike the complainant to not show up when she was supposed to
be somewhere.
When Springs could not get ahold of the complainant, she had another
co-worker go by the complainant’s office. The co-worker found the office door
locked and the lights off. This concerned Springs because it was unusual behavior
for the complainant. Eventually, Springs and Weaver decided to go to the
complainant’s home.
At the complainant’s house, Springs saw the complainant’s SUV in the
driveway. After initially driving by the complainant’s house, Springs returned and
saw Yolanda’s car there. Springs saw the front door to the complainant’s house
open. Yolanda came out yelling that the complainant “was dead.” Yolanda also
said that appellant “did this.” (Internal quotations omitted.)
Complainant’s Friend Mikel
Mikel testified that the complainant was one of her best friends. Mikel
previously worked at Dow Chemical and met the complainant through work.
Whenever Mikel went over to the complainant’s home, she would knock on the
front door or ring the doorbell. The complainant did not leave a key in the front
13
door for Mikel to use to come in on her own. Mikel also noted that the
complainant was not clumsy.
According to Mikel, while the complainant was married to Rathkamp, she
became pregnant, but appellant,8 not Rathkamp, was the father of her child. The
complainant terminated that pregnancy. The complainant told Mikel that she had
“been with” appellant while she was married.
In 2016, the complainant became pregnant again. Appellant was the child’s
father. During the complainant’s pregnancy, her relationship with appellant was
“on and off.” Mikel described the complainant and appellant’s relationship as
“very tumultuous.” At one point while the complainant was pregnant, the
complainant “found out that [appellant] was seeing another woman,” and she
stopped speaking to appellant after that. The complainant did not tell appellant
that she gave birth to the child until after the child was born.
After the child’s birth, the complainant and appellant did not immediately
resume their relationship. Around the child’s first birthday, appellant reached out
to the complainant about “try[ing] [to] have [a] relationship again.” “[A]ll [the
complainant] wanted was for them to be a family and [to] have a family for [the
child].” The complainant “really wanted to make [the relationship with appellant]
work.” Mikel noted that the timing of appellant’s renewed interest in a
8
Mikel stated that she had met appellant at work while appellant worked at Dow
Chemical.
14
relationship with the complainant “seemed odd” because it coincided with the
complainant and appellant’s discussions to “renegotiate” their custody and support
agreement related to the child. Appellant appeared “opportunistic.” But the
complainant decided to enter into a relationship with appellant again.
At some point after the complainant resumed her relationship with appellant,
Yolanda and Monica moved out of the complainant’s home, and appellant moved
in. As to the complainant’s relationship with appellant, Mikel stated that “[t]here
w[ere] always . . . problems going on and trouble.” But the complainant stayed
with appellant because she “really want[ed] to make [it] work.” By late 2018
though, the complainant had realized that the relationship was “not going to work”
and she “need[ed] to move on.”
Mikel stated that during the complainant’s relationship with appellant it was
“more difficult” to spend “time with her because [the complainant] would kind of
have . . . restrictions” and “could only meet” on certain days.9 Mikel and the
complainant had to make plans far in advance to see each other. If Mikel and the
complainant ever planned to get together and the complainant needed to cancel,
she would always tell Mikel. She would never just not show up.
9
Mikel noted that while the complainant was in a relationship with appellant, she
spent less time with her family. Appellant’s demeanor with the complainant’s
family was “cold.” He was not “family-friendly.”
15
According to Mikel, she and the complainant mainly communicated through
text messages. And the complainant was very responsive to Mikel’s text
messages. On February 20, 2019, Mikel and the complainant had a text message
conversation about their plans to go to a salon and then to dinner on the evening of
February 21, 2019. In that text message conversation, they spoke about how they
could not wait to see each other the next day.
On February 21, 2019, Mikel sent the complainant a text message in the
morning to tell the complainant “how excited [she] was to see her.” The
complainant did not respond, which Mikel thought was weird. Later in the day,
Mikel sent the complainant a text message stating that she was “on [her] way to the
salon.”
When the complainant did not meet her at the salon, Mikel knew that
something was wrong. Mikel called the complainant several times, but the
complainant did not answer. Mikel then sent a text message to appellant at
5:48 p.m. on February 21, 2019 that said:
Hey [appellant] it’s [Mikel]. I haven’t heard from [the complainant]
and she was supposed to meet me over 20 minutes ago at our . . . appt.
[H]ave you heard from her??
Appellant responded to Mikel’s text message at 8:01 p.m., stating:
No. She messaged me last night but nothing from today. I picked up
[the child] this morning and he’ll be with me through the weekend but
we didn’t speak. I believe she is avoiding me. Things have[] been
[]growing weird since she came back from her last trip.
16
At 8:02 p.m., appellant sent Mikel another text message, saying:
Did [you] get a hold over [sic] her? My family is here at the house
right now. We are supposed to have dinner here tomorrow but she
hasn’t mentioned anything about it.
Mikel responded to appellant’s text messages at 8:02 p.m., stating:
Okay. Well glad [the child] is safe and sound with you. I still haven’t
heard from her and I’m a little worried. I don’t have anyone else’s
phone number to contact.
Appellant then told Mikel that he would “call [the complainant] after dinner.”
Complainant’s Friend Janeth
Janeth Rodriguez testified that she worked at Dow Chemical and had met
complainant through work. In October 2017, at a lunch with the complainant,
Janeth learned that the complainant and appellant had a child together but were not
in a relationship. From October 2017 onward, Janeth and the complainant stayed
in contact. In 2018, the complainant and appellant “got[] back together.”
Janeth attended the child’s second birthday party on February 9, 2019, which
was held at a house in Angleton. The complainant and appellant did not interact a
lot during the party. The home where the party was held was being remodeled.
Janeth further testified that she had lunch with the complainant on
February 18, 2019. During their lunch, the complainant said that she and appellant
were not in a relationship anymore. The breakup “was fresh”; the complainant
said that she and appellant “had split up the week before.” It was the
17
complainant’s decision to end the relationship, and she felt comfortable with her
decision. The complainant also expressed concern about Janeth sending her text
messages because it appeared that the complainant’s text messages were being
monitored.
According to Janeth, on February 18, 2019, only the complainant and the
child were living at the complainant’s home. Appellant “was moving his things
out.” The last time that Janeth heard from the complainant was on February 18,
2019.
Complainant’s Friend Welch
Lauren Welch testified that she worked at Dow Chemical and had met the
complainant at work. Because she and the complainant had children near the same
age, they would have playdates together. At some point, after the child was born,
Welch learned that the complainant was in a relationship with appellant.
Welch and the complainant had set up a playdate for their children on
February 22, 2019. They ran into each other at work on February 19, 2019, and
the complainant “looked distressed” and said that they “need[ed] to catch up.”
That night, Welch reached out to the complainant by text message and asked to get
together with her on the afternoon of February 22, 2019. They made plans for the
complainant and the child to go to Welch’s home that day.
18
During Welch’s testimony, the trial court admitted into evidence a copy of
the text message conversation between Welch and the complainant, during which
they made plans for a playdate on February 22, 2019 around 2:30 p.m. or 3:00 p.m.
In her text messages to Welch, the complainant used the letter “u” instead of the
word “you.” The complainant responded to Welch’s text messages promptly.
Welch testified that the complainant never called to cancel their plans for
February 22, 2019. Welch found out on the evening of February 21, 2019 that the
complainant had died.
Complainant’s Cousin Kimberly
Kimberly Cantu, the complainant’s cousin, testified that while the
complainant was married, she had an affair with appellant. The complainant met
appellant while they both worked at Dow Chemical. As a result of the affair, the
complainant got divorced.
In December 2015, Kimberly became aware that the complainant was in a
relationship with appellant again. At some point, the complainant became
pregnant, and appellant was the father of the child. The complainant told Kimberly
about her pregnancy in August 2016. At the time, the complainant and appellant
were still in a relationship, and the complainant was excited about having the child.
In November 2016, though, Kimberly learned that the complainant and appellant
had broken up because appellant “had another girlfriend in California.”
19
The complainant had the child on February 6, 2017. The complainant and
appellant were not in a relationship when the child was born. In December 2017,
the complainant told Kimberly that she and appellant were back in a relationship.
The complainant and appellant’s relationship continued into 2018.
In 2018, Kimberly learned that appellant had bought a house in Angleton.
But appellant still lived at the complainant’s home. In 2018, the complainant also
notified Kimberly that she had concerns about her text messages being monitored.
During Kimberly’s testimony, the trial court admitted into evidence a copy
of a text message conversation between Kimberly and the complainant from June
10, 2018. In the conversation, the complainant told Kimberly: “I need to catch u[10]
up on my life” and “[b]ut not over phone or text.” Kimberly then asked: “Are
things rough with you and A,”11 and the complainant responded: “Yeppers.”
Kimberly replied: “Don’t tell me they are being monitored.” And the complainant
said: “Might be[]”12 and “[i]t’s better to talk in person anyways.”13
Kimberly further testified that the complainant and appellant remained in a
relationship through the end of 2018 and into January 2019. But in February 2019,
10
Kimberly noted that the complainant used the letter “u” instead of the word “you”
in her text messages.
11
Kimberly testified that “A” meant appellant’s name.
12
Kimberly testified that the complainant meant that her text messages “[m]ight be”
being monitored.
13
Kimberly also testified that the complainant used the letter “r” instead of the word
“are” in her text messages.
20
Kimberly learned that the complainant and appellant had broken up. The
complainant sent Kimberly text messages on February 16, 2019, which was the last
conversation that Kimberly had with the complainant. In those text messages,
Kimberly learned that it was the complainant’s idea to break up with appellant.
During Kimberly’s testimony, the trial court admitted into evidence a copy
of Kimberly’s text message conversation with the complainant on February 16,
2019. In the conversation, Kimberly asked the complainant if she and appellant
were “[r]eady for marriage,” and the complainant replied: “Well[] no. He is
moving out and I’m staying here. I asked him to leave earlier this week.” The
complainant further stated that appellant did not “have much left” at her house and
that he had “been taking stuff most of the week.” The complainant explained:
I mean it sucks and it hurts but I’m sure this is what is needed[.] He
was never going to marry me....I realized that awhile ago[.] So I
wanted to get thru holidays and [the child’s] birthday and gave myself
alot of time to think about it[.]
Further, the complainant told Kimberly that the breakup was her idea. And that
she had told appellant that they “should stop and go [their] separate ways and focus
on coparenting [the child],” and “[h]e said ok.” The complainant told appellant:
“[U][14] should move to ur[15] house in angleton and I should stay here and he said
14
The complainant used the letter “u” instead of the word “you” in her text messages
to Kimberly.
15
The complainant used the letters “ur” in her text messages to Kimberly.
21
Ok.” The complainant said that she and appellant “r on good terms” but she was
“ready to move on with [her] life.”
Kimberly testified that at the end of her text message conversation with the
complainant on February 16, 2019, she and the complainant made plans for the
complainant and the child to visit Kimberly on February 23, 2019. The
complainant and the child were going to spend the night at Kimberly’s house.
Kimberly never received a follow-up text message or telephone call from the
complainant canceling their plans.
As to the complainant’s behaviors generally, Kimberly testified that the
complainant was not clumsy. She did not fall or trip or bump her head on things.
When Kimberly would visit the complainant at the complainant’s house, the
complainant never left a key in the door for Kimberly to use to unlock the door and
come into the house. If Kimberly ever found the wooden front door of the
complainant’s house unlocked, then the glass storm door was always locked. Even
when the complainant knew that Kimberly was coming over to visit, Kimberly
would still have to ring the doorbell to be let into the complainant’s home. And the
complainant always had “every light in the house on” if she was home. Kimberly
also noted that the complainant had surveillance video cameras at her house.
As to the complainant and appellant’s relationship generally, Kimberly
testified that the complainant tried to make her relationship with appellant work.
22
Kimberly did not have any knowledge about appellant ever “beat[ing]” up the
complainant. But Kimberly stated that the complainant would not have told her
that kind of information because the complainant was “[t]oo proud.” Kimberly
observed that appellant was emotionally abusive to the complainant. And when
the complainant would travel for work appellant would not let her “FaceTime”16
with the child.
Complainant’s Therapist
Angela Gaston, a licensed clinical social worker, testified that she had been
the complainant’s therapist. The complainant began seeing Gaston in 2015, while
the complainant was still married to Rathkamp, because she had an affair and “she
was trying to sort through her marriage and see what she wanted to do.”
Eventually, the complainant got divorced, and Gaston became aware that the
complainant was in a new relationship with appellant. After that, the
complainant’s therapy sessions focused on the complainant’s relationship issues
with appellant.
According to Gaston, the complainant’s relationship with appellant was not
a healthy one. Appellant was verbally and emotionally abusive. At some point,
16
“FaceTime is a[] [cellular telephone] application that allows individuals to make
video calls from telephones. FaceTime also may be run from other electronic
devices.” See Perone v. State, No. 14-12-00969-CV, 2014 WL 1481318, at *2
(Tex. App.—Houston [14th Dist.] April 15, 2014, no pet.) (not designated for
publication) (internal footnotes omitted).
23
the complainant became pregnant. Although “emotionally the [complainant’s]
relationship [with appellant] was very difficult,” the complainant was excited to
have a child and to “be a mom.”
At one time, Gaston advised the complainant to end her relationship with
appellant. And although the complainant “would try” to do so, “something would
happen” and the complainant and appellant “would get back together.” For
instance, appellant would “give [the complainant] a call” or they would “run into
each other and start talking again.” Gaston stated that appellant gave the
complainant “a lot of mixed messages” and he would “talk[] to other women,”
which upset the complainant. One day, appellant would “want[] to be together and
then the next day he didn’t.” The relationship was “a constant roller coaster.”
Gaston found appellant’s behavior to be manipulative and controlling.
While reviewing portions of her notes from her therapy sessions with the
complainant, Gaston stated that appellant did not want to pay child support. The
complainant felt “[f]earful of [appellant’s] intentions and [the] impact on” the child
and she felt that she could not trust appellant. (Internal quotations omitted.) In
January 2018, complainant reported to Gaston that appellant was upset with her
and she felt “vulnerable and used.” (Internal quotations omitted.) Appellant
“ha[d] turned her life upside down again.” (Internal quotations omitted.)
24
In May 2018, the complainant told Gaston that she felt appellant was
deceitful and had been giving her “mixed messages.” (Internal quotations
omitted.) The complainant had confronted appellant about his inappropriate
relationship with another woman, and appellant “responded by being angry and
denying any inappropriate behavior.” (Internal quotations omitted.) In June 2018,
the complainant reported to Gaston that she felt appellant was “emotionally
abusive to her” because he would not allow her to see the child on FaceTime while
she was traveling for work. (Internal quotations omitted.) And in September
2018, the complainant expressed that she was fearful of appellant.
Gaston opined that appellant’s behavior constituted “emotional blackmail”
because it made the complainant “afraid that if she didn’t do what [appellant]
said,” “he would . . . keep the child from her.” The complainant was fearful of
appellant because he had threatened to take the child and leave so that she would
never see the child again.
Gaston also testified that the complainant had turned down promotions at
work because appellant did not want her to take a job that required her to relocate.
The complainant told Gaston that appellant had “difficulty coping when things d[id
not] go his way” and when appellant would “get[] upset,” the complainant would
try to “be less reactive” so that their conflicts would be less. (Internal quotations
omitted.)
25
Numerous times the complainant told Gaston that she was fearful of
appellant, but she did not tell Gaston that appellant physically abused her.
However, the complainant did report that appellant had threatened her by saying:
“You better not push me,” and by referring to “his past and knowing . . . people
[who] could . . . harm her.” (Internal quotations omitted.) Gaston more
specifically explained that appellant “had warned [the complainant] not to push
him and that he knew people [who] could make her disappear.” And appellant
“basically warn[ed] her about his past,” by telling her that “he could never talk
about [it] because it was so dangerous.” The complainant never expressed fear
about anyone other than appellant. Appellant never attended a therapy session
with the complainant.
During Gaston’s testimony, the trial court admitted into evidence copies of
Gaston’s notes from her therapy sessions with the complainant. In March 2017,
the complainant reported that appellant did not want to pay child support related to
the child, but they were able to reach a temporary agreement that would be in
effect until January 2018. The complainant did not trust appellant and was fearful
of appellant’s intentions. In January 2018, the complainant reported that appellant
had told her that he “wanted to work things out” and she had put going back to
“[c]ourt over custody [related to the child] . . . on hold.” (Internal quotations
26
omitted.) She felt “very vulnerable and used” and that appellant had “turned her
life upside down again.” (Internal quotations omitted.)
In May 2018, the complainant expressed that appellant was continuing to be
deceitful with her, she felt that appellant was manipulative, deceitful, and
misleading, and appellant had been engaging in an inappropriate relationship with
another woman. When the complainant confronted appellant about the other
relationship, he became angry and denied any inappropriate behavior. In June
2018, the complainant reported that appellant was continuing “to be emotionally
abusive to her and [had] with[held] [the child] from her when she was out of
town.” In September 2018, the complainant expressed that appellant “trie[d] to
control every aspect of her life,” she was “[a]lways afraid of making [appellant]
upset,” and she was afraid that appellant would not “allow her to see/talk with [the
child] when she [was] away” traveling for work.
Agreed Temporary Order and Motion to Modify Child Support
Krista Harris, a paralegal who previously worked with the complainant’s
attorney, William Terry, testified that the complainant had retained Terry to
represent her in a suit affecting the parent-child relationship. Harris noted that
when the child was about three months old, a temporary order had been put in
place related to the custody and care of the child. Under the temporary order,
appellant was not required to pay child support, but beginning on April 15, 2017,
27
he was required to pay $750 a month into certain accounts for the benefit of the
child.
During Harris’s testimony, a copy of an Agreed Temporary Order from May
5, 2017 was admitted into evidence. The Agreed Temporary Order adjudicated
appellant to be the father of the child, and it appointed the complainant and
appellant as temporary joint managing conservators of the child. The complainant
was given the exclusive right to designate the child’s primary residence. The
Agreed Temporary Order also set forth a custody agreement for the child.
As to child support, the Agreed Temporary Order stated that the complainant
and appellant had agreed that no child support would be paid by either party at the
time. Instead, the complainant and appellant would open a joint money market
account or checking account for the benefit of the child. The purpose of the
account was for the child’s necessities, such as diapers, clothes, and expenses for
the health, education, safety, and welfare of the child. The complainant and
appellant were ordered to contribute $300 each per month to the account. The
complainant and appellant were also ordered to set up an individual savings
account for benefit of the child and for his needs beyond high school. The
complainant and appellant were ordered to contribute $450 each per month to that
account.
28
Harris explained that a few days before February 15, 2019, the complainant
met with Terry to discuss filing a motion to modify the Agreed Temporary Order
and she expressed her desire to seek child support from appellant. On February 15,
2019, Harris called the complainant to ask if the complainant was ready to file the
motion to modify. The complainant “said, no, that she had asked [appellant] to
move out of [her] residence and she didn’t want to file it until he had moved out.”
The complainant wanted to wait to file the motion to modify until after appellant
had “moved out of her home.” The complainant said that appellant “would be mad
and she wanted to avoid any confrontation.” Harris called the complainant again
on February 20, 2019 to see if appellant had moved out of the complainant’s
house. The complainant said that he had moved out and “she wanted to go ahead
and file [the motion to modify] to seek . . . child support.” The complainant was
concerned about when appellant would receive a copy of the motion to modify.
She told Harris that appellant would be upset and mad about the motion to modify
and she “wanted to be prepared for him to call her.” The complainant did not say
that she was scared that appellant would physically hurt her. She said that
appellant was “going to be angry about the child support so she wanted him to be
moved out of the house before she filed [the motion to modify] and once it was
filed she wanted to be prepared for when he would get a copy of it.”
29
After speaking with the complainant, Harris filed the motion to modify
around 3:00 p.m. on February 20, 2019. Appellant’s attorney got notice of the
motion to modify immediately after it was filed—meaning appellant’s attorney
would have been notified a little after 3:00 p.m. on February 20, 2019 that the
complainant had filed a motion to modify the Agreed Temporary Order.
During Harris’s testimony, a copy of the Motion to Modify Temporary
Order, filed by Harris on behalf of the complainant on February 20, 2019 at
3:08 p.m., was admitted into evidence. The motion to modify states that on May 5,
2017, the complainant and appellant entered into the Agreed Temporary Order.
Since that time, “financial circumstances ha[d] materially changed” and the
complainant was requesting modification of the temporary order. The complainant
specifically requested that the support ordered to be paid by appellant in the
Agreed Temporary Order “be increased to conform to the guideline amount.”17 A
hearing was set on the complainant’s motion to modify for March 6, 2019.18
Terry testified that the complainant retained him as her attorney in 2016 for
“a paternity action” because she was having the child in February 2017 and she
wanted to “establish the [child’s] biological father and to set out the rights and
17
Harris testified that “the guideline amount” meant the child support guidelines in
the Texas Family Code. According to Harris, for one child, the Texas Family
Code required child support to be set at twenty percent of the parent’s net income.
18
Harris testified that the March 6, 2019 hearing did not go forward because of the
complainant’s death on February 21, 2019.
30
duties and obligations of the father.” According to Terry, appellant was the child’s
father. After the child was born, Terry filed the paternity action on the
complainant’s behalf. At some point in 2017, the complainant and appellant went
to court for a hearing about temporary orders. The complainant drafted a proposed
agreement related to visitation with the child and child support. At that time, Terry
had calculated that appellant would owe about $1,186 a month in child support.
As Terry explained, in Texas, “if [someone has] one child, the [child support]
obligation is 20 percent of [the] person’s net resources,” so appellant’s child
support calculation was based on his “pay stub.” Appellant did not agree to the
complainant’s proposed agreement requiring him to pay child support. But
eventually, the complainant and appellant agreed to a temporary order that
provided for the complainant and appellant “to set up a joint account for the benefit
of the child” and both “to contribute money into the account.” While viewing the
Agreed Temporary Order, Terry testified that the complainant and appellant agreed
to each pay $300 a month into an “Account for Child’s Necessaries.” (Internal
quotations omitted). And the complainant and appellant would each pay $450 a
month into an “Account for Beyond High School Needs.” (Internal quotations
omitted.) Thus, under the Agreed Temporary Order, appellant was to pay $750
each month related to the child. Terry did not know if appellant was actually
paying $750 each month like the Agreed Temporary Order required.
31
Terry further testified that the complainant met with him on February 10,
2019 to request that a motion to modify the Agreed Temporary Order be filed. In
the motion to modify, the complainant sought changes to child support and
possession and access to the child because a material and substantial change of
circumstances had occurred.
In their meeting, Terry learned that appellant had been living with the
complainant, but the complainant “wished to change those arrangements.” The
complainant explained that appellant had been “having contact with other women
over the internet” and the complainant “didn’t think they were going to make it” as
a couple. The complainant also told Terry that she was afraid of appellant, and she
was “concerned about [appellant] getting served with [the motion to modify] while
he was still in the [complainant’s] house.” The complainant did not want
appellant’s attorney to receive the motion to modify until appellant had moved out
of her home. Terry agreed not to file the motion to modify until after appellant had
moved out.
Terry also explained that the motion to modify was filed on the
complainant’s behalf on February 20, 2019 and a hearing was set on the motion for
March 6, 2019. But that hearing never took place. Terry learned that the
complainant had died “within a day of” the filing of the motion to modify. Upon
the complainant’s death, her case was dismissed.
32
As to the complainant and appellant’s relationship generally, Terry testified
that he knew that the complainant “was very afraid of [appellant] and what his
actions were capable of and she didn’t want to make [appellant] mad.” Terry did
not recall the complainant ever telling him that appellant had physically harmed
her. But she had mentioned appellant’s “temper and how mad he would get about
certain things and how controlling he was and how he didn’t like her being around
her family and other people.”
Jamie Wilson, a legal assistant who worked for appellant’s attorney, Scott
Brown, testified that on February 20, 2019, she received a motion to modify from
Terry’s law firm related to the child. Upon receiving the motion to modify, she
informed Brown that the motion had been received, and he asked her to notify
appellant that the motion to modify had been filed by the complainant. Wilson
called appellant on February 20, 2019 to tell him about the motion to modify.
Wilson spoke to appellant on the telephone that day. On the morning of February
21, 2019, Wilson sent appellant a follow-up email, with a copy of the motion to
modify attached, and she notified him of the hearing date set for the motion.
33
During Wilson’s testimony, the trial court admitted into evidence a copy of
Wilson’s February 21, 2019 email to appellant, which was sent at 9:13 a.m.19 That
email states:
Per our discussion yesterday, please find attached the Motion to
Modify Temporary Order[] that our office received from opposing
counsel. Note your hearing is set for March 6, 2019 at 9:30 a.m. in
the 300th Judicial District of Brazoria County.
The copy of the email admitted into evidence also contains a response email from
appellant to Wilson at 12:22 p.m. on February 21, 2019.
Law Enforcement Officers
Officer Mears
Lake Jackson Police Department (“LJPD”) Officer C. Mears testified that he
was on duty on February 21, 2019 when he was dispatched to 54 Greenvale Court
in Lake Jackson, Brazoria County, Texas, at about 5:30 p.m., in response to an
emergency-assistance call about “an unresponsive female in a bathtub.” When he
arrived, he went inside the home and found the complainant in the bathtub in the
primary bathroom. The water in the bathtub was “trickling slightly.” There was a
wine glass on the floor. As Mears walked around the house, he saw a cellular
telephone on the bed in the primary bedroom. He also saw keys in the front door
19
Lake Jackson Police Department (“LJPD”) Detective R. Pierce testified that a
printed copy of this email was found by law enforcement officers in appellant’s
SUV. A printed copy of the motion to modify filed by the complainant on
February 20, 2019 was attached to the email.
34
to the home. Nothing in the home looked like “someone [had been] trying to
burglarize [it].”
Officer Kimbrell
Former LJPD Officer T. Kimbrell testified that while on duty on February
21, 2019, he was “called out” to 54 Greenvale Court in response to a medical
emergency. When Kimbrell arrived, he saw keys in the home’s front door. He
also noticed a surveillance video camera positioned near the front door of the
home. When Kimbrell went into the primary bathroom, he saw a “body in the tub”
and a broken wine glass on the bathroom countertop and on the floor. The back
door to the home was unlocked.
Detective Pate
Former LJPD Detective T. Pate testified that on February 21, 2019, he
received a call from another law enforcement officer asking him to come to 54
Greenvale Court to assist with “processing the scene” following “a suspicious
death.” Pate arrived at the single-story house at about 7:15 p.m. At the front door
to the home, Pate saw a key in the lock that had a “Hawaiian shirt key chain”
attached to it.
Detective Pate proceeded to the primary bathroom in the home, where he
saw the complainant deceased in the bathtub. “She was lying on her right side,”
and she had “a wine or some sort of bottle next to her, kind of in her arms.” The
35
wine bottle had blood and the complainant’s hair on it.20 There was blood in the
bathtub, and the complainant was naked and “cold to the touch.” When law
enforcement officers moved the complainant’s hair, they saw that the complainant
“had a pretty good size cut on the top of her head.” It was “a really jagged gash in
her head.” The complainant’s eye was “bruised and swollen.” She was “bleeding
from the nose area.” And “[s]he was in rigor mortis stage.” Pate also saw a
broken wine glass on the floor of the primary bathroom, and there were “shards of
glass from that [wine glass] on the [bathroom] counter[top]” as well. Pate noted
that outside the bathtub were two socks and “a nightgown-style shirt” on the floor
that were soaking wet.
Detective Pate explained that based on the scene in the primary bathroom, it
did not appear that the complainant had fallen in the bathroom or in the bathtub.
And law enforcement officers could not find “any indication that she had
[accidentally] hit her head on anything.” There were no hand towels in the
bathroom and no bathing towels near the bathtub, which would indicate that the
complainant was not intending to bathe. Pate believed that the complainant had
been “bludgeoned over the head with some object.”
20
Detective Pate noted that the bottle was consistent with other wine bottles found in
the primary bedroom. Texas Ranger T. Norsworthy testified that no fingerprints
were found on the wine bottle, not even the complainant’s fingerprints, which was
surprising, and led him to believe that the scene in the primary bathroom was
staged.
36
Detective Pate further testified that while he was in the primary bathroom,
another law enforcement officer used “a Bluestar agent,”21 which was designed to
“reveal[] blood that ha[d] been wiped or washed away.”22 The Bluestar agent was
applied to both sinks in the primary bathroom, and “there was a bright, blue glow”
on the bathroom countertop “to the left” of the right-side sink and “down” into the
sink and “into the drain.” There were also “bright blue streaks” on the countertop
in front of the right-side sink that led “down the bowl.” And there was “a pretty
heavy glow of blue puddled” where the “soap dispenser” was located on the
bathroom countertop.23 There was no blood visible to the naked eye on the
countertop though. The only toiletries were on the left side of the bathroom
countertop; there were no toiletries near the right-side sink.
As to the primary bedroom, Detective Pate explained that there was a wine
refrigerator in the bedroom, and the complainant’s cellular telephone was found at
the foot of the bed. There were some blood droplets on the bed, on the sheets, on a
21
Texas Ranger Norsworthy testified that “Bluestar is a chemical enhancing agent
that allows typically nonvisual blood to be seen” and law enforcement officers
“use it in . . . crime scenes that have been cleaned up.” (Emphasis omitted.)
22
Detective Pate noted that the Bluestar agent could “glow for [another] liquid
[other] than blood.” And Texas Ranger Norsworthy testified that the Bluestar
agent could give a “false positive[] for irons, rust, . . . turnips, potatoes” and
bleach. However, he noted that the presence of bleach at the crime scene could
indicate that it was used “to destroy DNA or clean up a crime scene.”
23
Texas Ranger Norsworthy testified that he did not believe that the Bluestar agent
caused a “false positive” when it was used in the complainant’s primary bathroom
that day.
37
couple of pillowcases, and on the duvet cover. There were also blood droplets
along the side of the bed closer to the nightstand, which Pate described as “almost
as if [they were] leading to the bathroom.” Pate believed that the complainant was
injured while she was lying in bed and she was transported to the primary
bathroom.
Detective Pate further opined that the scene at the complainant’s home was
staged to make it look like the complainant was intoxicated. The wine bottle that
was in the complainant’s arms and the broken wine glass in the primary bathroom
looked like they had been placed there after the complainant had died. There was
no blood evidence consistent with a slip and fall in the primary bedroom or the
primary bathroom. And Pate saw no signs of a “break-in” or a forced entry. The
complainant’s wallet and laptop were still inside the home.24
Detective Bailey
Former LJPD Detective S. Bailey testified that on February 21, 2019, he
responded to a call at 54 Greenvale Court. Upon arrival, Bailey entered the home
through the front door, and he noticed that there was a set of keys in the “dead-bolt
lock” in the wooden front door.
24
Detective Pierce also testified that “the person who came into the [complainant’s]
house did not take her wallet” and “the person who went into [the complainant’s]
house and killed her did not take [the complainant’s] laptop,” even though it was
“a[n] item of value.” The complainant’s wallet still had money and credit cards
inside when it was found by law enforcement officers in her home.
38
Detective Bailey went to the primary bathroom and saw the complainant in
the bathtub naked. The complainant was cold to the touch, and she “had rigor
mortis,” which indicated that she had not died “in the preceding few minutes.”
The water was turned on but was not running at a normal rate. The water was not
coming out fast. Bailey noticed blood coming from the complainant’s head. There
was also blood in the bathtub.
Detective Bailey saw a wine or champagne bottle near the complainant’s
head and arms. And he noticed a broken wine glass partially on the floor and
partially on the countertop in the primary bathroom. There was no evidence that
the broken wine glass ever had wine or champagne inside it. This made Bailey
feel like “the scene was staged.” Bailey did not notice anything in the primary
bathroom that would indicate that the complainant was injured due to “a slip and
fall.”
In the primary bedroom, Detective Bailey saw droplets of blood next to the
bed on the floor near the nightstand as well as droplets of blood in the bedding near
the head of the bed. This blood did not seem consistent with “any type of
accident,” such as a slip and fall in the primary bathroom. It also did not appear
that the complainant had slipped and fallen in the bed and then walked to the
primary bathroom because there was no trail of blood from the bed to the primary
bathroom.
39
Detective Bailey further testified that an inspection of the complainant’s
house did not indicate that there had been any forced entry. And there was no
evidence that “there had been an attempt to burglarize the [complainant’s] house.”
Valuable items were still in plain view in the home. Bailey testified that based on
law enforcement officers’ investigation, it appeared that the complainant died in
the early morning hours of February 21, 2019, “[s]ometime prior to 2:31 a.m.”
While speaking with Yolanda at the scene, Detective Bailey learned that the
child, who was two years old at the time, also lived in the house with the
complainant and that appellant had been living in the complainant’s house, but
“that living situation” had recently changed. At the time, no one at the scene knew
the location of the child. Bailey was given appellant’s address, and he and LJPD
Detective D. Hawkins drove to appellant’s house in Angleton to look for the child
and to speak with appellant about the complainant’s death.
When Detective Bailey left the complainant’s house around 10:00 p.m. on
February 21, 2019, he drove with Detective Hawkins to appellant’s house in
Angleton. It took about fifteen minutes to get to appellant’s house from the
complainant’s home. Upon arrival at appellant’s house, Bailey and Hawkins
parked outside of the gate, and Hawkins called appellant on his cellular telephone.
Hawkins noted that it was weird that appellant did not ask why the law
enforcement officers wanted to speak to him. Appellant came outside of his house
40
and met the officers at the gate. Bailey and Hawkins then notified appellant of the
complainant’s death. Appellant responded: “You’re kidding me” and “hung his
head.” Bailey and Hawkins told appellant that they needed to check on the safety
of the child, and appellant invited the officers into his home to check on the child
and to speak with him.
Inside appellant’s home, Detective Bailey saw the child sleeping in the
family room on “two sofas [that had been] pushed together to keep him from
rolling off onto the floor.” The child appeared fine, but he was not in a bedroom.
Bailey noted that appellant’s house was “sparsely furnished,” and appellant said
that he was remodeling the house and “cleaning it up.” Bailey did not smell fresh
paint in the house.
While at appellant’s house, appellant voluntarily agreed to an interview with
the law enforcement officers. Detective Bailey testified that, during appellant’s
interview on February 21, 2019, appellant told the officers that the child was
supposed to stay with him from February 21, 2019 until February 24, 2019. He
was supposed to return the child to the complainant on February 24, 2019.25
Appellant also told the officers that the complainant had sent him a text message at
25
Detective Hawkins testified that appellant’s house on February 21, 2019 did not
look like it had been prepared for the child to stay there for an entire weekend.
Thus, the child staying at appellant’s house on February 21, 2019 may not have
been a planned decision, but rather a sudden decision. During appellant’s
February 27, 2019 interview with Texas Ranger Norsworthy, appellant agreed that
his home did not appear to be set up for the child to stay with appellant.
41
2:31 a.m. on February 21, 2019, which appellant stated was strange behavior.26
And appellant said that it was abnormal for the complainant not to respond to his
text messages.
Appellant further told the law enforcement officers that every year he and
the complainant went “back to court to review their temporary order[]” related to
the child. But he also stated that he was not aware “what changes were coming” to
his and the complainant’s arrangement related to the child. Appellant told the
officers that he had not been served with the complainant’s motion to modify.
Detective Bailey considered appellant’s statement as an attempt to convey that
appellant “was not aware of what[] [was] going on” related to the motion to
modify.27
Detective Bailey also noted that appellant said that he had a key to the
complainant’s home, and it was normal for the complainant to leave her key in the
26
A copy of the text message from the complainant’s cellular telephone to appellant
on the morning of February 21, 2019 was admitted into evidence during Detective
Bailey’s testimony. A text message from the complainant’s cellular telephone,
which appellant stated was sent to him at 2:31 a.m., said: “Anthony I know it’s
early and you have to wake up soon but please stop by on your way to work.”
27
Detective Bailey noted that this statement by appellant was contradicted by the
email that Wilson sent to appellant about the complainant’s motion to modify.
Appellant received Wilson’s email in the morning on February 21, 2019 and
before he spoke with Bailey and Detective Hawkins. Hawkins testified that a
printed copy of Wilson’s email with a printed copy of the complainant’s motion to
modify was found by law enforcement officers in appellant’s car. Hawkins also
testified that the complainant’s motion to modify stated that the complainant was
seeking an “increase” in child support from appellant by “a lot.”
42
front door of her home. Appellant stated that the complainant had three video
surveillance cameras outside of her house, but the surveillance camera at the back
of her house was not working.
Appellant confirmed that he went into the complainant’s home on the
morning of February 21, 2019 and took the child, but he stated that he did not
speak to the complainant. Appellant told the law enforcement officers that he
“drove all the way to work in Houston” and then “dr[o]ve back to Lake Jackson” to
pick up the child and take him to daycare, before then “driv[ing] back to Houston
to work.” According to appellant, he had a flexible work schedule that allowed
him to drop the child off at daycare and not be at work until 9:00 a.m.
While speaking with appellant on the night of February 21, 2019, Detective
Bailey noted that appellant said that his parents were “going to be really freaked
out” about the complainant’s death, but appellant did not appear to be “freaked
out” himself. Appellant did not show much emotion. Appellant also stated that
“he didn’t see any reason why anybody would want to attack [the complainant],”
which Bailey found odd since he and Detective Hawkins had told appellant that the
officers did not know yet whether the complainant had died from “a slip and fall or
if she was murdered or if it was suicide.”
Detective Bailey further testified that appellant gave inconsistent statements
during his interview on February 21, 2019. And appellant made some odd
43
statements, such as: “My timeline should be very clear.”28 Appellant told the law
enforcement officers that he and the complainant were not in a relationship, and he
was dating other women. But, according to appellant, he and the complainant had
dinner plans for February 22, 2019.
During Detective Bailey’s testimony, the trial court admitted into evidence
an audio recording of appellant’s February 21, 2019 interview. In that interview,
appellant stated that the complainant’s friend, Mikel, had contacted him earlier in
the evening on February 21, 2019 because she had plans with the complainant, and
appellant had told Mikel that he would try and call the complainant. When
appellant asked, during his interview, “what happened” to the complainant,
Detective Hawkins told appellant that they “didn’t know yet.” Hawkins then
reiterated that the complainant had died, but he did not know “why or how” at that
point. Appellant told the officers that he did not see why anyone would “attack”
the complainant. Appellant described his house to the officers as a work in
progress and stated that he was doing remodeling work on the home.29 He stated
that his mother had been at his home earlier in the evening on February 21, 2019
helping him paint.
28
Detective Hawkins testified that “timeline” is “more a police term” and appellant
was “trying to establish an alibi.” (Internal quotations omitted.)
29
Appellant also noted that he was “trying to run a mead business” at his house,
which he had been working on for the past two years.
44
Detective Hawkins asked appellant, during the interview, about the last time
he had spoken to the complainant, and appellant responded that the complainant
had sent him a text message at 2:31 a.m. that morning, which was strange
behavior. But according to appellant, he did not get the text message until he was
at work in Houston at 5:19 a.m.
When appellant saw the text message, he contacted his work supervisor,
Kevin Henson, and told him that the complainant’s behavior was “abnormal” and
he needed to go check that everything was okay with the child. Appellant then
went to pick up the child from the complainant’s house in Lake Jackson and took
him to daycare. When he got to the complainant’s house on the morning of
February 21, 2019, around 6:45 a.m., the child had just woken up. The child had
been sleeping in the primary bedroom, he was getting out of bed, and he was not
dressed. The complainant was not in the primary bedroom, but appellant stated
that it “sounded like” the complainant was taking a shower. Appellant did not see
the complainant though, and the complainant did not say anything. After dropping
off the child at daycare, appellant returned to work in Houston.
After appellant finished work, he picked the child up from daycare and
brought the child to his house in Angleton. According to appellant, it was planned
for the child to spend February 21, 2019 to February 24, 2019 with him, and it was
always planned that appellant would take the child to daycare on the morning of
45
February 21, 2019.30 Yet appellant stressed how difficult the morning was for him
because he was “all the way in Houston” at work and then he drove “all the way
back” to Lake Jackson to pick up the child. Appellant noted the complainant’s
failure to respond to his text messages on the morning of February 21, 2019 was
abnormal behavior.
Appellant further told Detective Hawkins, during his interview, that he had a
key to the complainant’s house, but when he arrived at the complainant’s home on
February 21, 2019, the complainant’s key was already in the front door, which
appellant characterized as “normal for” the complainant. Appellant also stated that
there were three surveillance video cameras outside of the complainant’s house.
Two of the surveillance video cameras worked, but the camera at the back of the
house did not.
As to the complainant’s and appellant’s custody arrangement for the child,
appellant stated during his interview that every year31 he and the complainant went
back to court to “re-do [their] temporary order[]” and they were in that “phase”
30
Appellant stated that he had previously taken the child to daycare when the
complainant was traveling for work, and his “flexible schedule” at work allowed
him to come to work at 9:00 a.m. on the days that he needed to take the child to
daycare. Taking the child to daycare on February 21, 2019 was “normal”
according to appellant.
31
Detective Hawkins testified that law enforcement officers learned through their
investigation that this was not something that happened “every year” between the
complainant and appellant. A date for the complainant and appellant to return to
court related to the child was not set until February 20, 2019 when the
complainant filed the motion to modify.
46
currently.32 Appellant described his relationship with the complainant as
“co-parents” and stated that they were not intimate.33 But he also stated that they
had planned to move into appellant’s house in Angleton as a family, and they had
planned to have dinner at appellant’s house on February 22, 2019. They had not
been having any “marital issues,” although appellant also told Detective Hawkins
that there were other women in his life.
Further, appellant stated, during his interview, that the complainant was
“emotional.” And appellant referred repeatedly to his “timeline,” and he stated
that his “timeline” should be clear as to when he was at the complainant’s house
that day, when he dropped the child off at daycare that day, and when he reported
to work that day.
Detective Hawkins
Detective Hawkins testified that on February 21, 2019, at 5:50 p.m., he was
called “for a death investigation” at 54 Greenvale Court. Upon arrival, Hawkins
noticed that the front door to the home had a key in the lock. The key had a
keychain attached to it that was shaped like a t-shirt. Hawkins noted that there did
32
Appellant told Detective Hawkins, during his interview, that both he and the
complainant “did not want child support.” And he and the complainant had set up
a joint account for the child’s needs. He stated that he had not been “served” with
“child support” papers, but he knew that the complainant had contacted her lawyer
so that the temporary order could be “updated.” Appellant also stated that he
knew the complainant had filed something.
33
Upon further discussions with appellant though, Detective Hawkins learned that
appellant and the complainant had sexual intercourse in January 2019.
47
not appear to be any signs of a burglary having taken place in the home or that
someone had been searching the home for valuables. There were no signs of
forced entry into the home.
Detective Hawkins explained that after entering the house, he went to the
primary bedroom and found a cellular telephone at the foot of the bed, which
“seemed in an odd position.” And according to Hawkins, law enforcement officers
had found blood on the sheets and pillows in the bed, which indicated to Hawkins
that “a harmful event occurred inside” the primary bedroom. There was also blood
on the floor next to the bed. But there was no blood leading from the bed in the
primary bedroom to the primary bathroom, which indicated that “the crime scene
[had been] cleaned.”
After Detective Hawkins entered the primary bathroom, he saw the
complainant naked in the bathtub. The complainant had blood in her hair, and a
wine bottle next to her.34 “[R]igor mortis was fully set [in],” and the complainant
had “[a] large wound on the left side of the top of her head.” There was also a
broken wine glass on the floor of the primary bathroom and on the countertop,
which looked like it had “had been broken over the counter instead of dropped or
something like that.” Hawkins found the position of the wine glass to be
suspicious. There were no signs of a struggle in the primary bathroom.
34
Detective Hawkins noted that there were similar wine bottles “in the ‘his’ portion
of the ‘his and her’ closets” in the primary bedroom.
48
Detective Hawkins also noted that there was no bathing towel near the
bathtub, which made the scene look like “it wasn’t an accident” because the
complainant “wouldn’t have been taking a bath on her own” without a towel. Law
enforcement officers determined that the scene looked “staged.” Cleaning
products were found in the cabinet under the sink in the primary bathroom, and
according to Hawkins, it looked like the primary bathroom had “been cleaned up.”
Because the child was not found in the complainant’s home, Detective
Hawkins and Detective Bailey went to appellant’s house to see if they could locate
the child. They drove to appellant’s house in Angleton at about 10:00 p.m. on
February 21, 2019. Appellant’s home was about fifteen minutes away from the
complainant’s home. When they arrived at appellant’s home, Hawkins called
appellant and stated that he needed to meet with appellant in person about
something important. Hawkins was purposefully vague because he wanted to see
“what [appellant] would say.” But appellant did not ask Hawkins what the law
enforcement officers wanted to see him about, which Hawkins found suspicious.
Hawkins did not release specific information to appellant about the complainant’s
death for investigative reasons.
When appellant came out to the gate in front of his home, he invited
Detective Hawkins and Detective Bailey into his house, and the officers saw the
child sleeping inside. Appellant also voluntarily participated in an interview with
49
the law enforcement officers. At the beginning of appellant’s interview, appellant
brought up a text message from the complainant right away and “practically threw
his cell[ular] [tele]phone at” Hawkins. This was unusual behavior in Hawkins’s
opinion. Appellant allowed Hawkins to photograph the text message sent from the
complainant’s cellular telephone to appellant on February 21, 2019. The text
message was sent at 2:31 a.m. and stated: “Anthony I know it’s early and you have
to wake up soon but please stop by on your way to work.”35 (Internal quotations
omitted.) In response, appellant sent the complainant the following text message:
“Trisha I just sat down at my desk...What’s on your mind?” (Internal quotations
omitted.) But there was no response sent from the complainant’s cellular
telephone. Appellant then sent the complainant another text message saying: “Is
[the child] dressed? I’m about to pull up.” (Internal quotations omitted.) The
complainant’s cellular telephone again sent no response. Finally, appellant sent the
complainant a text message stating: “Just dropped off at [d]aycare. He was in fine
spirits. I have to get back to work so we’ll have to talk later. I meet with the
lawyer this evening. Plan to have my parents over later to visit. Unless you have
changed your mind I was still planning dinner for us at my place Friday.”36
35
Detective Hawkins noted that in this text message sent from the complainant’s
cellular telephone, the word “you” is spelled out correctly as “Y-O-U” and the
word “your” is spelled out correctly as “Y-O-U-R.” (Internal quotations omitted.)
36
During Detective Hawkins testimony, copies of additional text messages between
the complainant and appellant from January 2019 were admitted into evidence. In
50
(Internal quotations omitted.) Hawkins testified that the text message from the
complainant’s cellular telephone to appellant at 2:31 a.m. on February 21, 2010
was not “consistent” with the complainant’s regular text message pattern because it
did not include the letter “u” in place of the word “you.” (Internal quotations
omitted.) However, the text message from the complainant’s cellular telephone
was consistent with the way that appellant wrote his text messages in which he
used the whole word “you” and did not abbreviate the word with a single letter.
(Internal quotations omitted.)
Detective Hawkins further testified that he called appellant on February 22,
2019 and told appellant that the complainant’s death “looked like it was murder.”
But he did not tell appellant about the condition of the complainant’s body or that
the complainant was found in the bathtub in the primary bathroom in her home.
On February 25, 2019, Detective Hawkins interviewed appellant again at
appellant’s home. An audio recording of appellant’s interview with Hawkins was
admitted into evidence. During his interview, appellant told Hawkins that he was
at the complainant’s house on the night of February 19, 2019.37 He had dinner at
those text messages from appellant to the complainant, he spells the word “you”
“Y-O-U,” but in her text messages to appellant, the complainant spells the word
“you” with just the letter “u.”
37
Detective Hawkins testified that law enforcement officers found a receipt from
“Wild West BBQ in Angleton” dated February 19, 2019, with a timestamp of
6:32 p.m. Hawkins testified that the receipt was significant because appellant had
51
the complainant’s house on that night.38 On February 20, 2019, the complainant
had dinner plans with Yolanda. He did not see the complainant on February 20,
2019.
As to the morning of February 21, 2019, appellant again stated that he went
to work before he went to pick up the child to take him to daycare. Appellant
emailed Henson at work, and he called Henson. He told Henson that he would be
coming back to work. According to appellant, it was normal for him to go to work
around 5:00 a.m. Appellant noted that when he was at the complainant’s house on
the morning of February 21, 2019, he thought the complainant was taking a shower
and the primary bathroom door was closed.
Appellant, during his interview, also told Detective Hawkins that he knew
that it was normal for law enforcement officers to think that the “spouse” “did it.”
And he stated that he went to work on February 25, 2019. Hawkins told appellant
that there was “no way” that the complainant’s death was “an accident.”
Detective Hawkins testified that Texas Ranger Norsworthy interviewed
appellant on February 27, 2019.39 While listening to appellant’s interview with
told Hawkins that he had dinner with the complainant at her home that night, but
the receipt showed “dinner for one person in Angleton.”
38
Appellant also stated that if he did not have dinner at the complainant’s house on
February 19, 2019, then she had dinner at his house that night.
39
A videotape recording of Texas Ranger Norsworthy’s interview with appellant on
February 27, 2019 was admitted into evidence.
52
Norsworthy at trial, Hawkins noted that appellant lied during his interview with
Norsworthy about what he had done on February 25, 2019 and appellant lied that
there had not been a significant change in his relationship with the complainant
before the complainant’s death.40 And although appellant stated in his interview
that he felt “rattled,” Hawkins noted that appellant never appeared “rattled” during
the times that he saw appellant on February 21, 2019, February 25, 2019, and
February 27, 2019. According to Hawkins, appellant made inconsistent statements
in his February 27, 2019 interview.
Detective Hawkins further testified that during the interview with Texas
Ranger Norsworthy, appellant stated that the complainant’s “pay scale [was]
slightly higher than his,” but through his investigation Hawkins learned that the
complainant’s “pay scale” was “significantly higher” than appellant’s. Although
appellant tried to make it seem like he and the complainant were making similar
salaries, the law enforcement officers’ investigation revealed that they were not.
Additionally, Detective Hawkins noted that appellant, during his interview,
stated that the first time that he and the complainant were supposed to return to
court about their temporary order related to the child, appellant decided to move in
40
Detective Hawkins noted that on February 21, 2019, appellant sent his mother,
Rosemarie Adell, a text message stating that he and the complainant had “split up”
after the child’s birthday in February 2019. (Internal quotations omitted.)
Hawkins also testified that appellant lied, during his interview, about having had
dinner with the complainant on February 19, 2019.
53
with the complainant. And appellant told Texas Ranger Norsworthy during his
interview that although he saw the complainant’s key in the front door of her home
on February 21, 2019 when he went to pick up the child, he did nothing about it
and left it in the front door. Of particular importance to Hawkins, appellant, when
discussing his actions on the morning of February 21, 2019, stated that after going
to work, he went “back to” the complainant’s house to “see how things were
going.” (Emphasis added.)
Detective Hawkins further testified about his continuing investigation of the
complainant’s death. Through the investigation, he learned that the complainant
left work at 4:46 p.m. on February 20, 2019, and she picked up the child from
daycare at 4:52 p.m. The complainant’s last communication before her death was
a work email that she sent on February 20, 2019 at 9:25 p.m.
According to Detective Hawkins, an analysis of appellant’s cellular
telephone showed that appellant received an incoming text message from the
complainant’s cellular telephone at 2:31 a.m. on February 21, 2019. Appellant
then sent the complainant a text message at 5:19 a.m., stating: “Trisha I just sat
down at my desk...What’s on your mind?” Appellant next called Kenneth Haught,
a co-worker, at 5:36 a.m., for about one minute. At 6:16 a.m., appellant received a
text message from Kevin Henson, stating that he had seen appellant’s email and to
keep him updated. At 6:43 a.m., appellant sent the complainant a text message
54
asking if the child was dressed and stating that he was “about to pull up.” (Internal
quotations omitted.) Appellant did not call the complainant. At 6:45 a.m.,
appellant called Henson, and at 7:19 a.m., appellant sent the complainant a text
message telling her that he had dropped the child off at daycare and that he was
going to meet with his attorney that night.41 Hawkins further testified that
appellant had multiple communications with his mother, Rosemarie, on February
21, 2019. In his text messages with Rosemarie, appellant told her that he had
received a letter from his attorney and that the complainant “wishe[d] to increase
the funds that [he] put forth for the child” so his previous discussion with
Rosemarie on the night of February 20, 2019 had been “accurate.” Appellant
noted that it was the complainant’s decision to “get lawyers” involved in his and
the complainant’s relationship. (Internal quotations omitted.) Rosemarie also
mentioned to appellant about getting a roommate to help with his “monthly bills to
hang on to [his] house.” Although appellant made multiple telephone calls during
the day on February 21, 2019, he did not call the complainant once.
At 4:45 p.m. on February 21, 2019, appellant called “Waste Connections”
from his cellular telephone. And around 5:00 p.m. on February 21, 2019, appellant
took several photographs of the child and himself at his house on his cellular
41
This indicated to Detective Hawkins that appellant had made plans to meet his
attorney before the morning of February 21, 2019, meaning appellant was aware
of the motion to modify at the time of the complainant’s death.
55
telephone. At 5:48 p.m., appellant received a text message from Mikel about the
complainant’s whereabouts. Appellant responded to Mikel’s text message at
8:01 p.m. Appellant told Mikel that he would call the complainant “after dinner.”
(Internal quotations omitted.) But appellant never made a telephone call to the
complainant that night. Detective Hawkins opined that this was because appellant
already knew that the complainant was dead.
Detective Hawkins also testified that following the complainant’s death,
appellant purchased a new cellular telephone. When law enforcement officers
examined the new cellular telephone, they found artwork depicting a nude female
in a bathtub.
As to the complainant’s finances, Detective Hawkins testified that the
complainant’s salary at Dow Chemical was $12,452 a month or about $150,000 a
year. As to appellant’s finances, Hawkins explained appellant made about $7,850
a month. Appellant’s salary was “about 60 percent of what [the complainant]
made.”
When appellant purchased his home in Angleton in November 2018, his
loan amount was $244,000 and his monthly mortgage payment was $2,329.52.
Appellant’s credit card bill from February 6, 2019 showed that he had a balance
due of $7,314, and he was “over his credit limit by” $514.98. At the time of the
complainant’s death, appellant was past due on his car payments.
56
As to the joint account that appellant and the complainant had set up for the
child, Detective Hawkins testified that the account was opened on April 28, 2017.
On December 11, 2018, appellant “took out a loan advance” on the child’s account
in the amount of $15,000, and he took that $15,000 out of the child’s account in
December 2018. On March 5, 2019, appellant took an additional $6,500 out of the
child’s account, which was money that had previously been put into the account in
addition to the $15,000 loan advance that appellant had received. Thus, between
December 2018 and March 5, 2019, appellant took $21,500 out of the child’s
account.
Detective Hawkins testified that “income disparity and being forced to pay
child support” could “anger a person.” And child support would be a financial
strain on appellant. When asked if appellant had “a lot of debt,” Hawkins replied:
“Yes.”
During his testimony Detective Hawkins viewed videotape recordings from
the surveillance video cameras at the complainant’s house.42 The videotape
recording from February 11, 2019, when appellant still lived at the complainant’s
house, showed appellant walking up to the front door of the home, with a large set
42
Texas Ranger Norsworthy testified that law enforcement officers were able to
obtain surveillance videotape recordings from the two surveillance video cameras
located on the front side of the complainant’s home. There were no surveillance
videotape recordings from the surveillance video camera at the back of the
complainant’s house.
57
of keys in his hand, and opening the door with his keys. The videotape recording
from February 16, 2019, after appellant had moved out of the complainant’s home,
showed appellant walking up to the front door of the home and waiting to be let
into the home; he knocked on the door and did not walk straight inside. The
videotape recording from February 17, 2019, when appellant no longer lived at the
complainant’s house, also showed appellant waiting at the front door of the home
to be let inside. And the videotape recording from February 18, 2019 showed
appellant waiting at the front door of the complainant’s home to be let inside.
Hawkins testified that on February 16, 17, and 18, 2019, appellant did not
approach the complainant’s home holding his keys in his hand, and he stopped at
the front door each time.
Notably, the videotape recordings from February 21, 2019—the day of the
complainant’s death—showed appellant arriving at the complainant’s home at
6:45 a.m., and appellant approached the front door of the home holding a set of
keys. According to Detective Hawkins, the videotape recordings from that day
showed appellant taking the keys out of his pocket as soon as he got out of his
SUV. The keys in appellant’s hand were not the same large set of keys that
appellant had used to open the complainant’s front door on February 11, 2019.
The videotape recordings from February 21, 2019 also showed appellant leaving
58
the complainant’s home carrying the child,43 but appellant did not have any keys in
his hand when he left the complainant’s home. Hawkins noted that appellant’s
behavior when he arrived at the complainant’s home on February 21, 2019—the
day of the complainant’s death—was much different than when he approached the
complainant’s home on February 16, 17, or 18, 2019, when the complainant was
alive. And, according to Hawkins, the keys that were found in the complainant’s
front door when Yolanda and others arrived at the complainant’s home later in the
day were the same ones that were in appellant’s hand on the morning of February
21, 2019.
In conclusion, Detective Hawkins opined that the person who killed the
complainant had to have been “intimately familiar” with her. He had to have
known how to get in the complainant’s house and which of the surveillance video
cameras at the complainant’s house did not work. He also had to have known that
the complainant loved wine. Hawkins added that, during the investigation of the
complainant’s death, appellant never expressed a desire of “finding [her] true
killer.”
43
Texas Ranger Norsworthy testified that appellant can be seen on the surveillance
videotape recordings from February 21, 2019 leaving the complainant’s house
about fifteen minutes after he initially arrived.
59
Texas Ranger Norsworthy
Texas Ranger Norsworthy testified that he interviewed appellant on
February 27, 2019. Norsworthy noted that during appellant’s interview, he was
emotionless, monotone in his speech, and robotic in his actions. Norsworthy also
observed that although the interview focused on the death of the complainant—the
mother of appellant’s child—appellant “lacked empathy in her death.”44
Texas Ranger Norsworthy described appellant as self-centered. Instead of
having an emotional reaction to the news of the complainant’s death, appellant
focused on “what he was going to have to do as a single father and how he was
going to have to deal with [the child] when he had to go to work.” When appellant
described “problems around the[] relationship” with the complainant, they were the
complainant’s “issues.” And appellant was very honest about his “polygamist
lifestyle.”
Texas Ranger Norsworthy also observed that during appellant’s interview, if
Norsworthy was “talking about [appellant] and something that would benefit him,”
appellant was “extremely open and g[ave] a very good, honest, elaborate answer.”
But if Norsworthy was “talking about the events leading up to [the complainant’s]
murder,” then appellant was “intentionally vague” and “skirt[ed] the issue.”
44
Texas Ranger Norsworthy also described appellant has having “essentially no
emotion and no empathy for others.”
60
Further, Texas Ranger Norsworthy noted that appellant would “often
double-talk” and was “all over the board with his speech and his stories and his life
history.” Appellant also “downplay[ed] the judicial proceedings” related to the
complainant’s motion to modify that were set to occur, saying that it was “no big
deal” and “a preplanned event that happen[ed] annually.” At the same time
though, appellant described the complainant as “so emotional” about the child
custody and child support issues. And appellant complained that law enforcement
officers had not told him anything about what had happened to the complainant.
According to Texas Ranger Norsworthy, in discussing the events of
February 21, 2019, appellant, during his interview, told “an unbelievable story”
about how he “essentially st[ole] [the child] from the [complainant’s] house
without any direct communication with [the complainant].” And appellant was
very evasive about his whereabouts on February 20, 2019, which Norsworthy
found to be odd because appellant’s movements on February 20, 2019 were “very
explainable.” There was no evidence that appellant had been at the complainant’s
home on February 20, 2019.
Texas Ranger Norsworthy also testified that appellant had accessed the
surveillance video camera system from the complainant’s house on the morning of
61
February 21, 2019, but he did not delete any surveillance videotape recordings.45
Appellant knew that the surveillance video camera at the back of the complainant’s
home was not working, and he said so “multiple times” in his interview. Based on
the printed copy of an email found in appellant’s car, Norsworthy believed that
appellant had spoken to his attorney on February 20, 2019 about the complainant’s
motion to modify.
Medical Examiner
Dr. Satish Chundru, a medical examiner, testified that he performed the
autopsy on the complainant’s body.46 The complainant was thirty-nine years old at
the time of her death. An external examination of the complainant’s body showed
that she had a large laceration on the left side of her scalp. Her left eye was
swollen and discolored, and there was an abrasion or contusion on her left facial
cheek. Dr. Chundru described the laceration on the left side of the complainant’s
scalp as “a pretty extensive injury.” The complainant also had bruising on the right
side of her scalp and a “fresh” bruise on her hand. (Internal quotations omitted.)
45
Detective Hawkins noted that during appellant’s interview with Texas Ranger
Norsworthy, appellant stated that he “rarely check[ed]” the surveillance video
camera system from the complainant’s home, but he did so on the morning of
February 21, 2019. According to Hawkins, looking at the surveillance video
camera system was consistent with “making sure there’s not something on there
[that] you don’t want found.”
46
A copy of Dr. Chundru’s autopsy report was admitted into evidence.
62
Underneath the complainant’s head laceration, Dr. Chundru found multiple
skull fractures. If the complainant had fallen, there would have been a single skull
fracture—not multiple ones like Dr. Chundru found. The multiple skull fractures
found on the complainant would have resulted from being hit “with, like, a
hammer or something like that.” Multiple fractures did not result from a simple
fall. Either the complainant’s head had hit an object multiple times or an object
had hit the complainant’s head multiple times. Dr. Chundru opined that multiple
“blow[s]” to the complainant’s head produced the fractures. The fractures likely
caused the complainant’s eye-bruising because blood would have seeped into her
eyelids as a result of the fractures.
Dr. Chundru also discovered a hemorrhage around and within the
complainant’s brain, and the complainant had bruising of the brain. Hemorrhages
in or around the brain and bruising on the brain were signs of “pretty severe
trauma.” According to Dr. Chundru, the complainant had a subarachnoid
hemorrhage, meaning that blood was directly touching the complainant’s brain
tissue and irritating the brain. This could cause a person to die because the
irritation would have caused the heart and lungs to stop functioning. The
complainant also had a subdural hemorrhage, which could lead to death because
“when it gets so big . . . it pushes on the brain.” The bruising on the complainant’s
brain would also have irritated her brain.
63
Dr. Chundru further testified that a toxicology report for the complainant
revealed that she did not have any alcohol or narcotics in her system. She only
tested positive for caffeine and cough medicine.
According to Dr. Chundru, the complainant’s cause of death was blunt force
head injuries. The complainant’s injuries were not the result of a “slip and fall.” A
number of different objects could have caused the blunt force injuries to the
complainant’s head, including the wine bottle found near the complainant in the
primary bathroom. The object just needed to be blunt and hard. Either the
complainant’s injuries were caused by the object striking the complainant’s head
repeatedly or the complainant’s head striking the object repeatedly. In sum, Dr.
Chundru explained that blunt force was used on the left side of the complainant’s
skull, which caused multiple fractures and bleeding in her brain and resulted in the
complainant’s death. The blunt force used could have caused serious bodily injury
and death. And the manner of the complainant’s death was homicide. The
complainant did not die of natural causes.
Appellant’s Work History
Todd Gentile testified that he worked at LyondellBasell as an operations
supervisor, and he previously supervised appellant at work from May 2016 until
June 2018. Appellant was employed as a maintenance instrument and electrical
engineer at LyondellBasell. According to Gentile, appellant had issues with
64
attendance at work. The workday was supposed to start at 6:30 a.m. and end at
3:00 p.m., and appellant was supposed to be at work by 6:30 a.m. Eventually,
because of appellant’s attendance issues, a modified schedule or a flexible
schedule was developed for him, which allowed appellant to come to work at
6:00 a.m., and he would “be on the clock if he got in[to] [work] by” that time.
Appellant would not be considered “late” until 6:30 a.m. After the modified
schedule was created for appellant, he did not have attendance issues at work. In
2018, Henson took over as appellant’s supervisor.
Henson testified that he worked at LyondellBasell as “the maintenance team
lead.” Henson became the “team lead” in May 2018 and that role involved
supervising appellant at work. Appellant was paid hourly and was likely paid
between $35 and $45 per hour. The standard work hours for maintenance team
employees, including appellant, was from 6:30 a.m. to 3:00 p.m. However,
appellant was allowed to start work anytime between 6:00 a.m. and 6:30 a.m.
because he had a long drive to work and needed some flexibility on when he could
arrive. But, if appellant needed to come into work later than 6:30 a.m., he had to
communicate with Henson ahead of time, and they would discuss what appellant’s
modified hours would be.
Henson further testified that he knew that appellant had a child, and the
child’s mother usually took the child to daycare. But when the child’s mother was
65
traveling for work, it was appellant’s responsibility to take the child to daycare in
the morning. When those times occurred, appellant would request that his work
hours be modified so that he would start work at 8:00 a.m. and leave work at
4:00 p.m. Appellant would speak to Henson in advance about the need for
modified work hours because he had to take the child to daycare. It was a
“planned” change, and Henson would approve the request before the fact.
According to Henson, on February 21, 2019, appellant called Henson while
Henson was driving to work. Appellant told Henson that “he would be late
because he had to take [the child] to daycare.” But appellant did not tell Henson
that he had already been at work that morning or that he had sent Henson an email
at 5:27 a.m.47 Appellant had never called Henson while Henson was on the way to
work to tell him that he needed to take the child to daycare. Appellant had always
told Henson ahead of time the days that he would need to take the child to daycare,
and Henson would approve it. But appellant did not let Henson know in advance
that appellant would need a modified schedule on February 21, 2019. Henson saw
appellant at work on February 21, 2019 around 9:15 a.m. or 9:30 a.m.
When Henson and appellant talked at work about the reason appellant was
not there at his normal time, appellant told Henson that he and “the mother of [the
47
The trial court admitted into evidence a copy of an email from appellant to Henson
on February 21, 2019. The email was sent at 5:27 a.m. and stated: “Kevin, I need
[to] take care of some family business this morning. I’ll try to be back in the
office before lunch. Please call me when you get this message.”
66
child] were going through custody or child support issues at that time.” Appellant
told him that such conversations about child support happened once a year.
Appellant called Henson around 11:00 p.m. on February 21, 2019 and told him that
he needed to take February 22, 2019 off work “in regard[] to what [they] had
discussed earlier” in the day.
Henson next saw appellant at work on February 25, 2019, and appellant
spoke about “the reason he needed to stay home” on February 22, 2019. Appellant
told Henson that the complainant “had been killed and that he was talking with law
enforcement . . . about all that.” Appellant told Henson that the complainant was
found in the bathtub.
During Henson’s testimony, “badge records” from LyondellBasell were
admitted into evidence. Those records show that appellant arrived at work at
5:03 a.m. on February 21, 2019 and left work at 5:36 a.m.48 Appellant returned to
work at 8:57 a.m. and left again at 11:36 a.m. Appellant then returned to work at
12:07 p.m. and left work for the day at 3:09 p.m. On February 25, 2019, appellant
arrived to work at 8:36 a.m. and left work at 2:22 p.m.
Kenneth Haught testified that he worked at LyondellBasell as a maintenance
technician, and he had worked with appellant since 2014 on the maintenance team.
In 2016, appellant was in a relationship with the complainant “off and on.” In
48
Henson testified that this meant that appellant was at work for less than
thirty-three minutes on the morning of February 21, 2019.
67
2017, appellant and the complainant had the child. Appellant told Haught that he
and the complainant had an “agreement” about “some kind of account set up for
[appellant] to be able to put money in for” the child. At some point, appellant
bought a house in Angleton. According to Haught, the property was “huge” and
“[a] lot of work needed to be done” on the house.
On February 21, 2019, Haught and another co-worker called appellant in the
morning, and appellant “said something was going on and he didn’t want to talk
about it.” Haught later learned about the complainant’s death on the internet, but
he never told appellant that he knew that the complainant had died.
At the beginning of March, when appellant returned to work following the
complainant’s death, appellant never mentioned the complainant’s death to
Haught. Appellant spoke to Haught about “marrying” the complainant after
Haught already knew that she had died. Haught found it odd that appellant never
mentioned the complainant’s death to him because Haught knew the complainant
and Haught had worked closely with appellant.
Haught noted that he had seen appellant “get mad and inappropriately lose
his temper.” But he had never seen appellant “physically threaten anybody.”
Appellant liked things to be done his way. And he would manipulate situations so
that they would be in his favor.
68
Daycare Employees
Arlene Hernandez testified that she worked at Kool Kidz daycare, where she
is an owner and the cook. The daycare was in Lake Jackson near the Dow
Chemical office. Hernandez met the complainant when the complainant was
pregnant with the child because the complainant came to tour the facility.
Appellant was the father of the child.
After the child was born, he started attending the daycare when he was six or
seven weeks old because the complainant went back to work. While the child was
an infant, the complainant would come to the daycare every day during her lunch
break to breastfeed the child. When the child got old enough to eat regular food,
the complainant would send him with meat, potatoes, carrots, or cabbage, fruit, and
homemade muffins for lunch. The child’s lunch would have a glass container with
a red lid for the meat and vegetables and a separate container for the fruit. The
complainant would send the child with one muffin. The child’s lunch was
packaged the same way every day. The complainant also sent the child to school
with milk that she would buy from a dairy farm. The daycare employees were not
allowed to provide the child with the daycare’s milk. The complainant would put
the child’s lunch in the refrigerator at the daycare when she dropped the child off
or she would bring it to Hernandez. The child did not have a lunchbox or lunch
69
bag. If the complainant was going to let the child eat the “school lunch” at the
daycare, she would tell Hernandez ahead of time.
According to Hernandez, if the complainant was not traveling for work, then
she would always bring the child to daycare in the morning and pick him up in the
afternoon. And if the complainant was traveling for work, she would tell the
daycare employees who would be dropping the child off and picking the child up.
If the complainant was not going to be the person dropping the child off or picking
the child up, she would always let the daycare employees know. If the child was
not going to come to daycare one day, the complainant would tell the daycare
employees in advance. If the complainant was going to deviate from the normal
drop-off or pick-up schedule or the child’s normal meal format, she would
“[a]lways” let someone at the daycare know.
Hernandez testified that on February 21, 2019, she arrived at the daycare at
about 5:45 a.m. At 7:00 a.m., the daycare feeds the children breakfast. Normally,
the child arrived at the daycare between 7:30 a.m. and 7:45 a.m., or 8:00 a.m. On
February 21, 2019, the child was at the daycare early enough to eat breakfast,
which Hernandez found to be odd because he had never eaten breakfast at the
daycare before that day. Hernandez noted that even in the past when the
complainant was traveling and appellant was responsible for dropping the child off
at daycare, appellant still fed the child breakfast before he arrived at the daycare.
70
Hernandez later learned that appellant had dropped the child off on the morning of
February 21, 2019. The complainant had never spoken to Hernandez about
appellant dropping the child off on February 21, 2019.
Hernandez further testified that when she went to look for the child’s food at
lunchtime on February 21, 2019, she could not find it in the refrigerator.
Hernandez could not find it because the child’s food had been brought in a lunch
bag, and the child had never brought a lunch bag before. Inside the lunch bag, was
a plastic bowl, three muffins in a baggie, and no fruit. The child’s lunch had never
been packaged that way. Meat and potatoes were in the plastic bowl, but they were
“all on top of each other,” which was not the normal way that the complainant
packed the child’s lunch. Hernandez had never seen the complainant “package
three muffins in a baggie for” the child either. The lunch bag also contained a
plastic sippy cup, which the complainant had never used for the child before.
Previously, when the complainant had been out of town for work, appellant had
brought the child’s lunch to the daycare in the same glass containers that the
complainant used.
Jessica DeLaGarza testified that she worked at Kool Kidz daycare and was
one of the owners. DeLaGarza explained that she met the complainant while the
complainant was pregnant with the child. The complainant worked at Dow
Chemical, and the daycare was about one minute away from the Dow Chemical
71
office. The child started attending daycare when the complainant went back to
work after his birth.
DeLaGarza explained that the child was not allowed to eat the lunches
provided by the daycare, and the complainant would bring the child’s lunch and
milk to daycare daily. DeLaGarza did not get to the daycare until after 8:00 a.m.,
but she stayed through pickup in the afternoon. The complainant was almost
always the person who picked the child up from daycare in the afternoon.
Occasionally, appellant or the complainant’s mother would pick the child up from
daycare. When appellant was the person responsible for picking up the child, the
complainant would send text messages to DeLaGarza to ask if the child had “left
yet or been picked up yet.”
DeLaGarza testified that the complainant was “a perfect mother” and the
child was her top priority. The complainant “gave up her lunch breaks to be with
him.” She was particular about everything the daycare did with the child, and she
was “a very good mom.” Occasionally, the child would not attend the daycare on a
Friday because the complainant and Yolanda spent the day with the child.
When the complainant traveled for work, appellant would be responsible for
picking up the child from daycare. The complainant notified DeLaGarza when she
would be traveling for work. The complainant would call DeLaGarza’s cellular
telephone to let her know if someone else was dropping off or picking up the child.
72
The complainant always informed DeLaGarza if someone other than the
complainant was dropping the child off at daycare or picking him up from daycare;
this happened “[e]very time.”
DeLaGarza further testified that when the child first began attending
daycare, the complainant paid for the childcare costs. Several months later,
appellant started making cash payments, but his cash payments were not made
consistently and were never a consistent amount of money.
On February 20, 2019, the complainant picked the child up from daycare.
The complainant and DeLaGarza talked for about twenty minutes that day. During
their conversation, the complainant did not tell DeLaGarza that appellant would be
dropping the child off at daycare the next day, February 21, 2019. That evening
DeLaGarza did not receive any telephone calls or text messages from the
complainant letting DeLaGarza know that appellant would be dropping the child
off at daycare on February 21, 2019.
On February 21, 2019, other daycare employees asked DeLaGarza if she had
been told that appellant, rather than the complainant, was going to drop off the
child that morning, and DeLaGarza stated it was out of the ordinary for no one at
the daycare to have been told ahead of time that appellant would be doing the drop
off. DeLaGarza also noted that the child’s lunch was packaged oddly that day,
73
which was weird because the complainant was consistent on the things that she
brought for the child’s lunch and the way they were packaged.
The week following the complainant’s death, DeLaGarza saw appellant. He
wanted to talk about bringing the child back to the daycare, and he wanted to
remove the complainant’s family members from the list of persons who were
authorized to pick up the child from daycare. Appellant added his sister to the list
of persons authorized to drop off and pick up the child from the daycare, and he
stated that he would be the person “picking up or dropping off” the child.
Appellant did not express any concern over the complainant’s death.
When DeLaGarza asked how the child was doing after the complainant’s
death, appellant stated that he was “happy” and “his self” and he “didn’t notice a
difference.” Appellant also told DeLaGarza that the child would be “[f]ine without
his mother.” Later, DeLaGarza offered to go get milk for the child from the dairy
farm that the complainant bought her milk from so that the child could continue
drinking the same milk, but appellant did not accept that offer.
DeLaGarza also testified that the last time that the complainant traveled for
work “[s]hortly before her passing,” DeLaGarza asked appellant: “Aren’t you so
excited [the complainant] is returning tomorrow[?]” (Internal quotations omitted.)
And appellant said: “No, it’s so much easier without her here.” (Internal
quotations omitted.)
74
Gisela Garcia testified that she previously worked at Kool Kidz as a teacher.
Normally, the complainant would drop off and pick up the child from daycare.
When the complainant was out of town, she would always tell the daycare
employees that appellant would be dropping off and picking up the child. If the
complainant was not going to be dropping off or picking up the child the next day,
she would tell the daycare the day before.
On February 20, 2019, Garcia saw the complainant when she picked up the
child. The complainant did not tell Garcia that appellant would be dropping off or
picking up the child the next day. As of February 20, 2019, Garcia believed that
the complainant would be dropping off the child the next morning.
Garcia stated that she worked on February 21, 2019, and she got to work
about 7:00 a.m. When she arrived at work, she saw appellant there with the child.
The child arrived at school at 7:07 a.m., which was early for him. Garcia was
surprised by this because the complainant did not tell anyone at the daycare that
appellant would be dropping the child off that day. At drop off, Garcia was given
the child’s lunch in a lunchbox that she had never seen before. Appellant told
Garcia that he would be back in the afternoon to pick up the child.
75
Appellant’s Relationships49
Patricia Davis testified that she dated appellant in high school and they dated
“off and on” after high school. At some point, Davis learned that appellant was
going to “have a child with someone,” but appellant told her that he and that
person had just “agreed to have a child”; “they weren’t actually involved in a
relationship.”
Around February 2019, Davis’s relationship with appellant “started again,”
and they had sexual intercourse. Appellant did not tell Davis that he was involved
in another relationship at that time. On the night of February 19, 2019, appellant
came to Davis’s home, and they had sexual intercourse. On February 20, 2019,
Davis and appellant sent messages to each other through Facebook Messenger.50
Appellant told Davis that he went to visit his parents that night. At 10:12 p.m. on
February 20, 2019, appellant sent Davis a message stating: “Well I’m about to
begin the first coat in the master bath. It’s the largest bath so let me put this coat
on and see what time it is. Maybe you’ll still be awake.” (Internal quotations
49
Additional women testified at trial about their relationships with appellant between
2016 and 2019.
50
See Edwards v. State, 497 S.W.3d 147, 155 n.8 (Tex. App.—Houston [1st Dist.]
2016, pet. ref’d) (“Facebook Messenger is a mobile tool that allows users to
instantly send chat messages to friends on Facebook. Messages are received on
[users’] mobile phones.” (internal quotations omitted)); see also Hassan v.
Facebook, Inc., No. 19-cv-01003-JST, 2019 WL 3302721, at *1 (N.D. Cal. July
23, 2019) (order) (noting plaintiff used Facebook Messenger application to
communicate with others via calls and instant messages).
76
omitted.) At 10:14 p.m., appellant said that he was “[a]bout to start” and he would
“let [Davis] know how it [went].” (Internal quotations omitted.) Appellant also
mentioned maybe being able to see Davis later that night.
Davis testified that she did not see appellant on the night of February 20,
2019, and she went to sleep. At 3:18 a.m. on February 21, 2019, appellant sent
Davis a message saying: “Good morning.” (Internal quotations omitted.) And at
3:48 a.m., appellant sent Davis another message that said: “Did you fall asleep on
me[?]” (Internal quotations omitted.) At 3:49 a.m., appellant tried to call Davis.
Appellant then sent Davis another message at 3:50 a.m., asking: “Is your door
unlocked? I was hoping to stop by for awhile on my way to work.” (Internal
quotations omitted.) Davis noted that her dog never alerted her that morning that
appellant stopped by her house.
At 6:00 a.m., Davis responded to appellant’s messages and told him that she
had fallen asleep. When Davis asked appellant if he had “been up all night,”
appellant responded: “2 maybe 3 hours. I’ve been trying to work till midnight and
usually get up before my 4 am alarm.” (Internal quotations omitted.) At 6:37 a.m.,
appellant told Davis that he would be “at work” soon.
Davis further testified that after the complainant’s death, she spoke to
appellant through Facebook Messenger on March 2, 2019. When she asked
appellant if law enforcement officers had “found out the cause of [the
77
complainant’s] death,” appellant stated that he “d[id] not believe so” and that law
enforcement officers had not “given [him] much details.” (Internal quotations
omitted.) On March 11, 2019, appellant, in a conversation with Davis over
Facebook Messenger, told her that law enforcement officers would not “even tell
[him] what happened” and they would not “talk to [him] about the facts.” (Internal
quotations omitted.)
As to appellant generally, Davis stated that she would not characterize him
as loyal or faithful. Appellant never tried to physically harm her.
Yulenty Deal testified that she worked at LyondellBasell and she met
appellant at work. In 2018, Deal, who was married at the time, was in a
relationship with appellant, and it was her understanding that appellant was not in a
relationship with the complainant at that time. While they were together, appellant
and Deal would go to hotels to have sexual intercourse after work.
Deal saw appellant at work on February 25, 2019, after the complainant’s
death. Appellant came to speak with her in her laboratory. He “looked a mess.”
Appellant told Deal “what happened” to the complainant. He said that the
complainant was found in her house and in the bathroom and that law enforcement
officers had given him that information.51 Appellant stated that he did not know
51
Detective Hawkins testified that he did not give appellant any details about the
complainant’s death on February 21, 2019, and when Hawkins spoke to appellant
on February 22, 2019, he only told appellant that it looked like the complainant
78
what had caused the complainant’s death. Later that day, Deal had sexual
intercourse with appellant at a hotel in Channelview, Texas. Deal ended her
relationship with appellant in 2020.
Appellant
Appellant testified that on February 20, 2019, he set his alarm for 4:30 a.m.
or 5:00 a.m. to get up for work, and he got to work about 6:00 a.m. and left work
about 4:00 p.m. that day. While at work on February 20, 2019, he received a
telephone call from Wilson, who worked for appellant’s attorney, and she told him
that a motion to modify had been filed by the complainant. Appellant knew then
that the complainant “wanted more child support” and that the complainant was
seeking “[f]inancial support.”
Appellant further testified that after work on February 20, 2019, he got a
haircut. At some point, he went to visit his mother, Rosemarie, at her house and
then went home. No one was at appellant’s house with him on the night of
February 20, 2019, and appellant stated that no one could “verify” that he was at
his home “all night.” Appellant started painting inside his house around
10:15 p.m. on February 20, 2019, and he estimated that he painted for two or three
hours. Appellant also testified that he slept three or four hours on the night of
had been murdered, but he did not provide appellant with any further details.
Hawkins did not call appellant anytime before appellant spoke to Deal on
February 25, 2019 and give him details about the complainant’s death.
79
February 20, 2019 and into the morning on February 21, 2019, after he finished
painting. And he woke up about 3:00 a.m. on February 21, 2019. After waking
up, appellant “tr[ied] to see” Davis, and he went to her house that morning. He
tried to wake her up by sending her messages, but he did not go to the door of
Davis’s home. When asked what he was doing at 2:31 a.m., when a text message
was sent from the complainant’s cellular telephone, appellant stated: “Probably
sleeping.” Appellant arrived at work around 5:00 a.m. on February 21, 2019,
which he admitted was “unusual” and “abnormal” for him. Because he had gone
to Davis’s home earlier that morning and could not wake her up, he stated that his
choices were to either “[g]o back home or go to work,” so he went to work an hour
early. It took appellant an hour to drive to work, and he did not have preapproval
to come into work that early. Appellant did not see the text message from the
complainant’s cellular telephone until he was at work.
Appellant further testified that he then left work, after only being there for a
few minutes, and he drove an hour to pick up the child and take him to daycare.
Appellant made no telephone calls to the complainant that morning after seeing the
text message from her cellular telephone. Appellant agreed that he should have
called the complainant that morning.
After appellant picked up the child from the complainant’s house, he
dropped him off at daycare and went back to work. Appellant testified that he
80
dropped the child off at daycare about forty minutes earlier than the time the child
was normally dropped off. After work, appellant picked the child up from daycare
and went to his house. He then called “Waste Connections” to come by his home
and pick up trash. Appellant stated he was surprised when law enforcement
officers showed up at his house around 10:00 p.m. that night.
When appellant returned to work on February 25, 2019, he told Henson that
the complainant had died, and when Henson asked appellant for details, appellant
stated that the complainant had been “found in her bathtub.” Appellant
acknowledged that law enforcement officers had not previously told him how the
complainant had died or “where she was located,” but he said that the fact that the
complainant had been found in the bathtub “had been released to the public.”
Appellant stated that his family had told him about the bathtub because “of what
was being posted on Facebook.”52
52
Facebook, Inc. is an online social media and social
networking service company. In general, the Facebook
service can be accessed from devices with Internet
connectivity, such as personal computers, tablets[,] and
smartphones. After registering, users can create a customized
profile [page] revealing information about themselves. Users
can post text, photos and multimedia of their own devising
and share it with other users as friends[.]
Jeansonne v. State, 624 S.W.3d 78, 90 n.13 (Tex. App.—Houston [1st Dist.] 2021,
no pet.) (alterations in original); see also Woodhouse v. United States Gov’t, No.
2:21-cv-06372-SB, 2021 WL 6333468, at *8 n.6 (C.D. Cal. Nov. 24, 2021) (order)
(noting Facebook, Inc. has changed its name to Meta Platforms, Inc.).
81
Appellant described himself as not an “emotional guy.” And he stated that
he had heard people describe him as “cold,” “distant,” “manipulative,” and
“calculat[ed].” Appellant also agreed that he “plan[ned] ahead.” And he stated
that law enforcement officers did not tell him the cause of the complainant’s death.
Appellant admitted that he did not have dinner with the complainant on February
19, 2019, which he had previously told law enforcement officers he had done, and
he stated that he must have gotten his days “mixed up.”
Appellant testified that when the complainant was in town, she usually took
the child to daycare. And the complainant was in town on February 21, 2019.
Appellant agreed that if the complainant was in town, it was “very unlikely” that
she would ask appellant to take the child to daycare in the morning, especially on a
day that she was going to work. And on February 21, 2019, the complainant was
supposed to go to work. The complainant would have had to drive past the
daycare on the way to her work.
Appellant agreed that he should not have gone over to Davis’s home on the
morning of February 21, 2019, and he should not have gone to work at 5:00 a.m.
because he was supposed to take the child to daycare on the morning of February
21, 2019. His decision to drive to work did not make sense if he was supposed to
take the child to daycare. Appellant stated that his behavior on February 20, 2019
and February 21, 2019 was “odd,” and he agreed that his behavior was “extremely
82
suspicious.” Appellant also agreed that after receiving Mikel’s text messages on
February 21, 2019 and telling Mikel that he would call the complainant, he should
have actually called the complainant.
As to his finances, appellant stated that in 2019 his “[t]otal compensation”
was $142,900.02, but his direct compensation was $111,367.03 and he would have
received less than that after taxes.53 The $15,000 loan that appellant took out
against the child’s account was used for the remodeling of appellant’s house. And
appellant admitted that he withdrew $6,500 from the child’s account. Appellant
also noted that he was over his credit limit on his credit card, and his SUV was
repossessed in 2020 for his failure to make payments.54
Sufficiency of Evidence
In his first issue, appellant argues the evidence is legally insufficient to
support his conviction because “[n]o direct evidence . . . link[ed] [a]ppellant to the
53
A copy of appellant’s “Total Compensation Statement” for 2018 was admitted into
evidence and it stated that his “[b]ase [e]arnings” were about $93,000.
54
We note that additional witnesses testified at trial and additional evidence was
admitted into evidence. The Court has reviewed the complete record in the instant
appeal, including all testimony and evidence presented during trial. See TEX. R.
APP. P. 47.1, 47.4; Sullivan v. Arguello Hope & Assocs., PLLC, No.
03-18-00144-CV, 2018 WL 6424200, at *1 n.2 (Tex. App.—Austin Dec. 7, 2018,
no pet.) (mem. op.) (“Because the parties are familiar with the facts of the case and
its procedural history, we do not recite them in this opinion except as necessary to
advise the parties of the Court’s decision and the basic reasons for it.”); see also
Obernhoff v. Nelson, No. 01-17-00816-CV, 2019 WL 4065017, at *18 n.19 (Tex.
App.—Houston [1st Dist.] Aug. 29, 2019, no pet.) (mem. op.) (noting appellate
court reviewed complete record).
83
murder of [the complainant],” “there was no evidence that [a]ppellant’s [SUV] or
his cell[ular] [tele]phone w[ere] anywhere near [the complainant’s] address at the
suspected time of the murder or that he was the mysterious person observed on
various [neighborhood] surveillance [video]tape[] [recordings]” near the time of
the murder, “no forensic evidence was presented [at trial] that place[d] [a]ppellant
at or near the scene of the murder at a time when the [complainant’s] death
occurred,” “[a]ppellant was never identified nor was his [SUV] ever seen at or near
[the complainant’s] house during the early morning hours” on the day the
complainant died, and “there [was] no evidence that [a]ppellant [was the person
that] staged the [murder] scene” or “cleaned the scene.”
We review the legal sufficiency of the evidence by considering all of the
evidence in the light most favorable to the jury’s verdict to determine whether any
“rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due
process safeguard, ensuring only the rationality of the trier of fact’s finding of the
elements of the offense beyond a reasonable doubt. See Moreno v. State, 755
S.W.2d 866, 867 (Tex. Crim. App. 1988). We defer to the responsibility of the
fact finder to resolve conflicts fairly in testimony, weigh the evidence, and draw
reasonable inferences from the facts. Williams, 235 S.W.3d at 750. That said, our
84
duty requires us to “ensure that the evidence presented actually supports a
conclusion that the defendant committed” the criminal offense of which he is
accused. Id.We note that in reviewing the sufficiency of the evidence, a court must
consider both direct and circumstantial evidence and any reasonable inferences that
may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012) (evidence-sufficiency standard of review same for both direct and
circumstantial evidence). Circumstantial evidence is just as probative as direct
evidence in establishing the guilt of an actor, and circumstantial evidence alone can
be sufficient to establish guilt. See Clayton, 235 S.W.3d at 778; Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). For evidence to be sufficient, the State
need not disprove all reasonable alternative hypotheses that are inconsistent with a
defendant’s guilt. See Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202,
207–08 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Rather, a court
considers only whether the inferences necessary to establish guilt are reasonable
based on the cumulative force of all the evidence when considered in the light most
favorable to the jury’s verdict. See Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d
at 13. The jury, as the judge of the facts and credibility of the witnesses, could
choose to believe or not to believe the witnesses, or any portion of their testimony.
85
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870
S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).
A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual. See TEX. PENAL CODE ANN. § 19.02(b)(1). A
person also commits the offense of murder if he intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
an individual.55 See id. § 19.02(b)(2). A person acts intentionally, or with intent,
with respect to the result of his conduct when it is his conscious objective or desire
to engage in the conduct or cause the result. Id. § 6.03(a). A person acts
knowingly, or with knowledge, with respect to a result of his conduct when he is
aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b); see
also Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) (“Murder is
a ‘result of conduct’ offense, which means that the culpable mental state relates to
the result of the conduct, i.e., the causing of the death.”). “‘Serious bodily injury’
means bodily injury that creates a substantial risk of death or that causes death,
55
Here, the indictment alleged that appellant committed the offense of murder under
both theories, and the trial court instructed the jury accordingly. See TEX. PENAL
CODE ANN. § 19.02(b)(1), (2). In response to the trial court’s charge, the jury
returned a general verdict of guilty. When a trial court submits alternative theories
of conviction to the jury, and the jury returns a general verdict, we will uphold the
verdict if the evidence is sufficient to support any one of the alternative theories.
See Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005); see also Hollins
v. State, Nos. 01-14-00744-CR, 01-14-000745-CR, 2015 WL 5076298, at *4 (Tex.
App.—Houston [1st Dist.] Aug. 27, 2015, pet. ref’d) (mem. op., not designated for
publication).
86
serious permanent disfigurement, or protracted loss or impairment of the function
of any bodily member or organ.” TEX. PENAL CODE ANN. § 1.07(a)(46).
“Intent is almost always proven by circumstantial evidence.” Trevino v.
State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi–Edinburg 2006, pet.
ref’d); see also Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct
evidence of the requisite intent is not required . . . .”); Smith v. State, 56 S.W.3d
739, 745 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). “A jury may infer
intent from any facts which tend to prove its existence, including the acts, words,
and conduct of the accused, and the method of committing the crime, and from the
nature of wounds inflicted on the victim[].” Trevino, 228 S.W.3d at 736. A jury
may also infer knowledge from such evidence. See Stahle v. State, 970 S.W.2d
682, 687 (Tex. App.—Dallas 1998, pet. ref’d); Martinez v. State, 833 S.W.2d 188,
196 (Tex. App.—Dallas 1992, pet. ref’d). In determining a defendant’s guilt, a
jury may consider events that occur before, during, and after the commission of an
offense. See Pitonyak v. State, 253 S.W.3d 834, 844–45 (Tex. App.—Austin 2008,
pet. ref’d); Martin v. State, 151 S.W.3d 236, 245 (Tex. App.—Texarkana 2004,
pet. ref’d); see also King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000)
(jury may consider evidence showing consciousness of guilt).
The evidence presented at trial shows that the complainant’s body was found
naked in the bathtub in her home on February 21, 2019. There is no evidence that
87
the complainant died from natural causes, a “slip and fall,” an accident, or from
suicide. When law enforcement officers found the complainant, she had blood in
her hair and “[a] large wound on the left side of the top of her head.” The wound
was “a really jagged gash in her head.” The complainant’s eye was “bruised and
swollen,” and she was “bleeding from the nose.”
Dr. Chundru, who performed the autopsy on the complainant’s body,
testified that the complainant had a large laceration on the left side of her scalp.
Her left eye was swollen and discolored, and there was an abrasion or contusion on
her left facial cheek. Dr. Chundru described the laceration on the left side of the
complainant’s scalp as “a pretty extensive injury.” The complainant also had
bruising on the right side of her scalp and a “fresh” bruise on her hand.
Underneath the complainant’s head laceration, Dr. Chundru found multiple
skull fractures. The multiple skull fractures would have resulted from the
complainant being hit “with, like, a hammer or something like that.” Either the
complainant’s head hit an object multiple times or an object hit the complainant’s
head multiple times. Dr. Chundru opined that multiple “blow[s]” to the
complainant’s head produced her skull fractures. The skull fractures likely caused
the complainant’s eye-bruising because blood would have seeped into her eyelids
as a result of the fractures.
88
Because the complainant had been hit in the head, the complainant had a
hemorrhage around and within her brain and the complainant had bruising of the
brain. According to Dr. Chundru, the hemorrhages in or around the complainant’s
brain and the bruising on the complainant’s brain constituted signs of the
complainant suffering “pretty severe trauma.” The complainant had a
subarachnoid hemorrhage, meaning that blood was directly touching the
complainant’s brain tissue and irritating the brain, which could have caused the
complainant to die because the irritation would have caused the complainant’s
heart and lungs to stop functioning. The complainant also had a subdural
hemorrhage, which would have caused her to die because “when it gets so
big . . . it pushes on the brain.” The bruising on the complainant’s brain would also
have irritated her brain.
In summation, Dr. Chundru testified that the complainant’s cause of death
was blunt force head injuries. A number of different blunt and hard objects could
have caused the blunt force injuries to the complainant’s head, including the wine
bottle found near the complainant in the primary bathroom.56 Either the
complainant’s injuries were caused by the object striking the complainant’s head
repeatedly or the complainant’s head striking the object repeatedly. According to
Dr. Chundru, blunt force was used on the left side of the complainant’s skull,
56
The wine bottle had the complainant’s blood and hair on it.
89
which caused multiple fractures and bleeding in her brain and resulted in the
complainant’s death. The blunt force used by the person who killed the
complainant could have caused serious bodily injury and death. This evidence
supports a finding that someone intentionally or knowingly caused the death of the
complainant or that someone intended to cause serious bodily injury to the
complainant and committed an act clearly dangerous to human life that caused the
death of the complainant.57 See TEX. PENAL CODE ANN. § 19.02(b)(1), (2); see
also Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018) (“The
defendant’s culpable mental state may . . . be inferred from the extent of the
[complainant’s] injuries.”).
Appellant argues that the evidence is legally insufficient to show that he was
the person who intentionally or knowingly caused the death of the complainant or
the person who intended to cause serious bodily injury to the complainant and
committed an act clearly dangerous to human life that caused the death of the
complainant because “[n]o direct evidence . . . link[ed] [a]ppellant to the murder of
[the complainant],” “there was no evidence that [a]ppellant’s [SUV] or his
cell[ular] [tele]phone w[ere] anywhere near [the complainant’s] address at the
suspected time of the murder or that [appellant] was the mysterious person
57
The jury need not unanimously agree on the manner or the means of the
commission of the complainant’s murder. See Sanchez v. State, 376 S.W.3d 767,
773–74 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d 738, 746 n.27 (Tex.
Crim. App. 2005).
90
observed on various [neighborhood] surveillance [video]tape[] [recordings]” near
the time of the murder, “no forensic evidence was presented [at trial] that place[d]
[a]ppellant at or near the scene of the murder at a time when the [complainant’s]
death occurred,” “[a]ppellant was never identified nor was his [SUV] ever seen at
or near [the complainant’s] house during the early morning hours” on the day the
complainant died, and “there [was] no evidence that [a]ppellant [was the person
that] staged the [murder] scene” or “cleaned the scene.”
But circumstantial evidence is just as probative as direct evidence in
establishing guilt, and circumstantial evidence alone can be sufficient to establish
guilt. See Clayton, 235 S.W.3d at 778; Hooper, 214 S.W.3d at 13. A lack of
physical or forensic evidence tying a defendant to a murder scene is only a factor
for the jury to consider in weighing the evidence. See Lee v. State, 176 S.W.3d
452, 458 (Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex.
Crim. App. 2006); see also Sample v. State, No. 05-19-01254-CR, 2021 WL
3042670, at *11–12 (Tex. App.—Dallas July 19, 2021, no pet.) (mem. op., not
designated for publication) (holding evidence sufficient to support defendant’s
murder conviction despite fact that State offered no forensic evidence linking
defendant to murder); Cuellar v. State, No. 08-18-00133-CR, 2021 WL 2184512,
at *6–7 (Tex. App.—El Paso May 28, 2021, no pet.) (not designated for
publication) (holding evidence sufficient to support capital murder conviction even
91
though defendant argued no physical evidence connected him to murder scenes);
Binder v. State, No. 2-01-447-CR, 2003 WL 298380, at *1 (Tex. App.—Fort
Worth Feb. 13, 2003, no pet.) (mem. op., not designated for publication) (lack of
physical evidence in case did not make evidence insufficient to support
conviction). The law requires no particular type of evidence. Johnson v. State,
560 S.W.3d 224, 226 (Tex. Crim. App. 2018).
Here, the jury heard evidence that appellant had a motive to kill the
complainant. Although motive is not an element of the offense of murder, such
evidence is relevant as a circumstance tending to prove guilt. See Nelson v. State,
405 S.W.3d 113, 124 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d); Russo v.
State, 228 S.W.3d 779, 794 (Tex. App.—Austin 2007, pet. ref’d); see also
Barrientos v. State, 539 S.W.3d 482, 493 (Tex. App.—Houston [1st Dist.] 2017,
no pet.) (“Evidence showing motive to commit murder is a significant
circumstance indicating guilt . . . .” (internal quotations omitted)).
At trial, the State presented evidence that on February 20, 2019, the day
before she died, the complainant filed a motion to modify requesting that appellant
be required to pay child support in an amount greater than the support he had been
paying under the previously established temporary order. Appellant was aware of
the complainant’s filing of the motion to modify and that the complainant was
seeking more money from him to support the child. Appellant was also aware that
92
the complainant made more money than he did but she still wanted him to pay
child support. The complainant was afraid of appellant and of what his reaction
would be to her filing the motion to modify.
The State further presented evidence as to why the complainant’s filing of
the motion to modify would have prompted appellant to kill the complainant.
Notably, appellant was in a difficult financial situation at the time of the
complainant’s death. He was spending a large amount of money remodeling his
home and on his mortgage. Appellant was over his credit limit on his credit card at
the time of the complainant’s death, he was behind on his car payments, and he had
taken out a $15,000 loan against the child’s account. Between December 2018 and
March 2019, appellant withdrew $21,500 from the child’s account, which was
money designated for the child’s necessities. Appellant’s mother expressed
concern about appellant losing his home on the day the complainant died. Yet, if
the complainant had been successful on her motion to modify, appellant would
have been required to pay more child support than he had been paying under the
temporary order that had been in place for almost two years. See Nelson, 405
S.W.3d at 124 (noting State presented evidence that defendant had “a financial
motive to murder the complainant”); Russo, 228 S.W.3d at 794 (at time of murder,
defendant was having financial difficulties).
93
The State also presented evidence that appellant was controlling and
manipulative over the complainant and the child. And the complainant had
recently ended her relationship with appellant and forced him to move out of her
home. Appellant, before the complainant’s death, had made comments about it
being easier to care for the child when the complainant was not around, and
appellant had previously withheld access to the child when the complainant
traveled for work. On the day of the complainant’s death, appellant ensured that
he had custody and control over the child.
Additionally, the State presented evidence that appellant was selfish and
self-centered. He was verbally and emotionally abusive to the complainant and
frequently engaged in infidelity. See Nisbett, 552 S.W.3d at 265 (relationship
difficulty can establish motive for murder); Nelson, 405 S.W.3d at 124 (evidence
of affair during relationship may provide motive for partner’s murder). Appellant
had previously threatened the complainant that “he knew people that could make
her disappear” if she acted in a way that he did not like. See Nisbett, 522 S.W.3d
at 265–66 (“Prior behavior by the defendant toward the deceased can also be
relevant to a determination of whether the defendant murdered the
[complainant].”).
The State also presented evidence that appellant had the opportunity to kill
the complainant. See id. at 265 (“Opportunity when coupled with motive . . . is
94
indicative of guilt.”). On the night of February 20, 2019 and into the early
morning of February 21, 2019, appellant was alone. He sent Davis a message on
his cellular telephone through Facebook Messenger around 10:14 p.m. on February
20, 2019, but appellant did not send any more messages to Davis or anyone else
that night. And appellant did not send Davis another message on his cellular
telephone until 3:18 a.m. on February 21, 2019. That left a period of about five
hours where appellant was not in contact with anyone.
Further, the State presented evidence that appellant’s house was only about
fifteen minutes away from the complainant’s house. Appellant had a key to the
back door of the complainant’s home, and he knew that the surveillance video
camera at the back of the complainant’s house did not work. The back door to the
complainant’s home was found unlocked by law enforcement officers later in the
day on February 21, 2019.
Additionally, the State presented evidence that the complainant’s cellular
telephone was found on the foot of the bed in the primary bedroom in an odd
location. Although a text message was sent from the complainant’s cellular
telephone to appellant at 2:31 a.m., the text message was written in a style that
resembled appellant’s style of texting, rather than the complainant’s style of
texting. Appellant, having previously lived in the complainant’s home, would
have also known that there was a wine refrigerator in the primary bedroom and that
95
there were wine bottles in the “his” side of the “his and her” closets in the primary
bedroom. It is likely that a wine bottle was used in the commission of the
complainant’s murder.58
Although appellant notes that no evidence presented at trial showed that his
cellular telephone was near the complainant’s house around the suspected time of
her death and that his car was not seen near the complainant’s home in the early
morning hours of February 21, 2019, the absence of such evidence does not
establish that appellant was not at the complainant’s home when the complainant
was killed.59 See, e.g., Floyd v. State, No. 02-22-00082-CR, 2023 WL 2033831, at
*6 (Tex. App.—Fort Worth Feb. 16, 2023, pet. filed) (mem. op., not designated for
publication) (holding evidence sufficient to support aggravated robbery conviction
even though no “cell-phone evidence” showed defendant “was in Fort Worth on
the day of the incident”).
And we note that the record is replete with inconsistent statements by
appellant and implausible explanations from appellant.60 See Guevara v. State, 152
58
A wine bottle, with the complainant’s blood and hair on it, was found near the
complainant’s body in the primary bathroom.
59
The jury, as the judge of the facts and credibility of the witnesses, could choose to
believe or not to believe the witnesses or any portion of their testimony. Sharp v.
State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870 S.W.2d
626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).
60
Due to their volume, we do not specifically detail all of appellant’s inconsistent
statements and implausible explanations that are contained in the record. See TEX.
R. APP. P. 47.1.
96
S.W.3d 45, 50 (Tex. Crim. App. 2004) (“Attempts to conceal incriminating
evidence, inconsistent statements, and implausible explanations to the police are
probative of wrongful conduct and are also circumstances of guilt.”); see also
Nisbett, 552 S.W.3d at 266 (inconsistencies in defendant’s story provide
evidentiary support for conviction); Ex parte Weinstein, 421 S.W.3d 656, 668
(Tex. Crim. App. 2014) (inconsistent statements and implausible explanations to
law enforcement are strong evidence of defendant’s consciousness of guilt). As
detailed above, appellant asserted, among other things, that on the night of
February 20, 2019, he started painting his home around 10:15 p.m. He painted for
two or three hours, and he purportedly woke up about 3:00 a.m.—earlier than he
normally did for work.
Further, after waking up early, appellant drove an hour to work, arriving an
hour earlier than he normally did. Appellant agreed that this was “unusual” and
“abnormal” behavior for him. Appellant made the hour-long drive to work even
though he asserted that the complainant and he had planned for him to take the
child to daycare that morning61 and even though his early arrival to work had not
been preapproved by his supervisor.
61
Although appellant asserted that it was the plan that he would drop off the child at
daycare on February 21, 2019, no one at the daycare was ever informed of this
plan, which was unusual.
97
Additionally, according to appellant, although he used his cellular telephone
to contact Davis in the early morning hours of February 21, 2019, he claimed that
he did not see the text message from the complainant’s cellular telephone until he
was at work around 5:00 a.m. He then immediately left work and drove an hour
back to Lake Jackson to pick up the child. Appellant made no attempt to call the
complainant after he received the abnormal text message from her cellular
telephone or during the entire time that he drove to her home. At trial, appellant
agreed that it would have made sense for him to call the complainant that morning.
Upon arriving at the complainant’s house around 6:45 a.m., appellant
walked straight into the complainant’s home, without knocking, even though he no
longer lived there. Appellant also had a different key in his hand than his large set
of keys that he had previously used to enter the complainant’s house on February
11, 2019, when he still lived there. When appellant left the complainant’s home
carrying the child, he was no longer carrying a key.62 Appellant then took the child
from the complainant’s home without ever speaking to the complainant. As Texas
Ranger Norsworthy explained, in discussing the events of February 21, 2019,
appellant told “an unbelievable story” about how he “essentially st[ole] [the child]
from the [complainant’s] house without any direct communication with [the
complainant]” on the morning of February 21, 2019. Appellant dropped the child
62
A key was later found in the complainant’s front door by Yolanda and law
enforcement officers.
98
off at daycare more than forty minutes earlier than normal and without the child’s
normal lunch.
At trial, appellant acknowledged that if the complainant was in town, then it
was “very unlikely” that she would have asked appellant to take the child to
daycare in the morning, especially on a day that she was going to work. And on
February 21, 2019, the complainant was supposed to go to work. The complainant
would have had to drive past the daycare on the way to work that morning.
Appellant also agreed that his decision to drive an hour to work on the morning of
February 21, 2019 did not make any sense if he was also supposed to take the child
to daycare that morning. See Longoria v. State, 154 S.W.3d 747, 757 (Tex.
App.—Houston [14th Dist.] 2004, pet. ref’d) (attempts to create false alibi are
evidence of guilt). And appellant acknowledged that his behavior on February 20,
2019 and February 21, 2019 was “odd” and “extremely suspicious.” See
Washington v. State, 567 S.W.3d 430, 439 (Tex. App.—Houston [14th Dist.] 2018,
pet. ref’d) (jury could infer defendant’s guilt by his strange behavior); see also
Johnson v. State, Nos. 14-17-00312-CR, 14-17-00313-CR, 2018 WL 3911148, at
*4 (Tex. App.—Houston [14th Dist.] Aug. 16, 2018, no pet.) (mem. op., not
designated for publication) (“out of the ordinary behavior” supported reasonable
inference of consciousness of guilt (internal quotations omitted)); Bunsow v. State,
No. 08-07-00066-CR, 2009 WL 146503, at *7 (Tex. App.—El Paso Jan. 22, 2009,
99
pet. ref’d) (not designated for publication) (jury could have inferred that
defendant’s odd behavior was indication of guilt).
We also note that appellant’s guilt may generally be inferred from his words
and actions.63 See Ex parte Weinstein, 421 S.W.3d at 668. The State presented
evidence that when Detective Bailey and Detective Hawkins arrived at appellant’s
house on the night of February 21, 2019, after the complainant’s death, appellant
did not ask the officers why they were there to see him. And appellant only
responded, “You’re kidding me,” when he was told of the complainant’s death.
On the night of February 21, 2019 and afterward, appellant appeared emotionless
regarding the complainant’s death. Following the complainant’s death, appellant
“lacked empathy in her death” and instead focused on himself and the hardships
that her death had caused him. Appellant never appeared “rattled” or “freaked out”
by the complainant’s death. And he never expressed a desire to find her “true
killer.”
The State also presented evidence that appellant, when he returned to work
on February 25, 2019—four days after the complainant’s death—told multiple
co-workers that the complainant’s body had been found in the bathtub or in the
bathroom of her home—information that law enforcement officers purposefully
63
In addition to what is discussed below, we note that the background section details
numerous words and actions by appellant from which his guilt could be inferred.
See TEX. R. APP. P. 47.1.
100
did not disclose to appellant. See McDaniel v. State, No. 14-08-1085-CR, 2010
WL 1704741, at *6 (Tex. App.—Houston [14th Dist.] Apr. 29, 2010, no pet.) (not
designated for publication) (information contained in defendant’s confession
“could only have been provided by someone who knew details concerning the
shooting or was present when [the complainant] was shot”). Appellant also had
sexual intercourse with a co-worker on February 25, 2019 at a hotel after work and
before returning to Lake Jackson. And during law enforcement officers’
investigation of the complainant’s death, they found artwork depicting a nude
female in a bathtub on appellant’s new cellular telephone that he purchased after
the complainant’s death. Cf. Dorsey v. State, 117 S.W.3d 332, 335–36 (Tex.
App.—Beaumont 2003, pet. ref’d) (evidence in murder trial that defendant rented
movie with plot similar to events surrounding murder was relevant to motive and
intent).
Viewing all of the evidence presented at trial in the light most favorable to
the jury’s verdict, we conclude that a rational trier of fact could have found beyond
a reasonable doubt that appellant intentionally or knowingly caused the death of
the complainant or appellant intended to cause serious bodily injury to the
complainant and committed an act clearly dangerous to human life that caused the
death of the complainant. See TEX. PENAL CODE ANN. § 19.02(b)(1), (2).
Accordingly, we hold that the evidence is legally sufficient to support appellant’s
101
conviction for the offense of murder. See Temple v. State, 390 S.W.3d 341, 359–
63 (Tex. Crim. App. 2013) (analogous case holding evidence sufficient to support
defendant’s conviction for offense of murder).
We overrule appellant’s first issue.
Motion to Suppress
In his second issue, appellant argues that the trial court erred in denying his
motion to suppress certain evidence recovered from his SUV because “there [was]
no evidence within the four corners of the [search warrant] affidavit that place[d]
[a]ppellant’s [SUV] at or near the murder scene at the time the murder allegedly
occurred,” which rendered the search warrant for his SUV invalid.
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. See Turrubiate v. State, 399 S.W.3d 147, 150 (Tex.
Crim. App. 2013). We review the trial court’s factual findings for an abuse of
discretion and the trial court’s application of the law to the facts de novo. Id. At a
suppression hearing, the trial court is the sole and exclusive trier of fact and judge
of the witnesses’ credibility, and it may choose to believe or disbelieve all or any
part of the witnesses’ testimony. Maxwell v. State, 73 S.W.3d 278, 281 (Tex.
Crim. App. 2002); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000).
When, as here, a trial court does not make explicit findings of fact, we review the
evidence in a light most favorable to the trial court’s ruling, and we assume that the
102
trial court made implied findings of fact that support its ruling as long as those
findings are supported by the record. Ramirez-Tamayo v. State, 537 S.W.3d 29,
35–36 (Tex. Crim. App. 2017); see also Walter v. State, 28 S.W.3d 538, 540 (Tex.
Crim. App. 2000). We give almost total deference to a trial court’s implied
findings, especially those based on an evaluation of witness credibility or
demeanor. Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App. 2010). We
will sustain the trial court’s ruling if it is reasonably supported by the record and is
correct on any theory of law applicable to the case. Id. at 447–48. This is so even
if the trial court gives the wrong reason for its decision. Laney v. State, 117
S.W.3d 854, 857 (Tex. Crim. App. 2003); State v. Brabson, 899 S.W.2d 741, 745–
46 (Tex. App.—Dallas 1995), aff’d, 976 S.W.2d 182 (Tex. Crim. App. 1998).
The Fourth Amendment of the United States Constitution and Article I,
Section 9 of the Texas Constitution protect individuals from unreasonable searches
and seizures. U.S. CONST. amend. IV; TEX. CONST. art. I, § 9; State v. Betts, 397
S.W.3d 198, 203 (Tex. Crim. App. 2013). The Fourth Amendment requires that
“no [w]arrants shall issue, but upon probable cause, supported by [o]ath or
affirmation.” U.S. CONST. amend IV; see also TEX. CONST. art. I, § 9; TEX. CODE
CRIM. PROC. ANN. art. 1.06. A search warrant may be obtained from a magistrate
only upon the submission of an affidavit setting forth substantial facts establishing
probable cause. TEX. CODE CRIM. PROC. ANN. art. 18.01(b). The affidavit must set
103
forth specific facts establishing that a specific offense has been committed, the
item to be seized constitutes evidence of the offense or evidence that a particular
person committed the offense, and that the item is located at, or on the person,
place, or thing to be searched. TEX. CODE CRIM. PROC. ANN. art. 18.01(c).
When a magistrate construes a probable cause affidavit, he is permitted to
“interpret the affidavit in a non-technical, common-sense manner and may draw
reasonable inferences from the facts and circumstances contained within its four
corners.” State v. Jordan, 342 S.W.3d 565, 569 (Tex. Crim. App. 2011). On a
complaint that evidence obtained during a search should be suppressed because the
magistrate had no probable cause to issue a search warrant, we apply a “great
deference” standard of review to the magistrate’s determination of probable cause.
Id. “Probable cause exists if, under the totality of the circumstances set forth in the
affidavit before the magistrate, there is a ‘fair probability’ that contraband or
evidence of a crime will be found in a particular place at the time the warrant is
issued.” Id. at 568–69 (internal footnote omitted). In our review of the
magistrate’s determination, we determine whether “‘the magistrate had a
substantial basis for concluding that probable cause existed.’” Id. at 569 (quoting
Illinois v. Gates, 462 U.S. 213, 236 (1983)). And we employ a
totality-of-the-circumstances analysis. Gates, 462 U.S. at 230–37. The Texas
Court of Criminal Appeals has explained: “The issue is not whether there are other
104
facts that could have, or even should have, been included in the affidavit;” instead,
“we focus on the combined logical force of the facts that are in the affidavit.”
Rodriguez v. State, 232 S.W.3d 55, 62 (Tex. Crim. App. 2007) (emphasis omitted).
And the truthfulness of the factual showing providing probable cause for a warrant
does not mean “‘truthful[ness]’ in the sense that every fact recited in the [search]
warrant affidavit is necessarily correct.” Franks v. Delaware, 438 U.S. 154, 165,
(1978). “[S]o long as the magistrate had a substantial basis for . . . conclud[ing]
that a search would uncover evidence of wrongdoing, the Fourth Amendment
requires no more.” Gates, 462 U.S. at 236 (second and third alterations in original)
(internal quotations omitted).
Appellant argues that the trial court erred in denying his motion to suppress
certain evidence recovered from his SUV, i.e., “pleadings” and a “receipt from a
[barbecue] restaurant,” because the affidavit supporting the search warrant for his
SUV contained “no evidence . . . that place[d] [a]pellant’s [SUV] at or near the
murder scene at the time the murder allegedly occurred.”
Here, for purposes of this opinion, we will presume, without deciding, that
law enforcement officers’ search of appellant’s SUV violated the Fourth
Amendment and the trial court erred in denying appellant’s motion to suppress.
Cf. Uvukansi v. State, No. 01-14-00527-CR, 2016 WL 3162166, at *8 (Tex.
App.—Houston [1st Dist.] June 2, 2016, pet. ref’d) (mem. op., not designated for
105
publication). Notably though, when the trial court erroneously denies a motion to
suppress and admits evidence obtained in violation of the Fourth Amendment, that
error is subject to a harm analysis. See TEX. R. APP. P. 44.2(a); Hernandez v. State,
60 S.W.3d 106, 108 (Tex. Crim. App. 2001); Santiago v. State, No.
04-19-00317-CR, 2020 WL 4808723, at *1 (Tex. App.—Amarillo Aug. 19, 2020,
no pet.) (mem. op., not designated for publication); see also Marcopoulos v. State,
548 S.W.3d 697, 707 (Tex. App.—Houston [1st Dist.] 2018, pet. ref’d) (appellate
court must determine whether trial court’s erroneous denial of motion to suppress
harmed defendant). We must reverse the trial court’s judgment of conviction
unless we determine “beyond a reasonable doubt that the error did not contribute to
the conviction or punishment.” TEX. R. APP. P. 44.2(a); see also Neal v. State, 256
S.W.3d 264, 284 (Tex. Crim. App. 2008); Uvukansi, 2016 WL 3162166, at *8. In
applying the harmless-error test, the primary question is whether there is a
“reasonable possibility” that the error might have contributed to the conviction.
Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (internal quotations
omitted).
We are directed that our harm analysis should not focus on the propriety of
the outcome of the trial. Instead, we must calculate, as much as possible, the
probable impact of the evidence on the jury in light of the existence of other
evidence. Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000). We
106
“should take into account any and every circumstance apparent in the record that
logically informs an appellate determination whether ‘beyond a reasonable doubt
[that particular] error did not contribute to the conviction or punishment,’” and if
applicable, we may consider the nature of the error, the extent that it was
emphasized by the State, its probable collateral implications, and the weight a juror
would probably place on the error. Snowden v. State, 353 S.W.3d 815, 822 (Tex.
Crim. App. 2011) (quoting TEX. R. APP. P. 44.2(a)). This requires us to evaluate
the entire record in a neutral, impartial, and even-handed manner and not “in the
light most favorable to the [State].” Harris v. State, 790 S.W.2d 568, 586 (Tex.
Crim. App. 1989) (internal quotations omitted), disagreed with in part on other
grounds by Snowden, 353 S.W.3d at 821–22; Daniels v. State, 25 S.W.3d 893, 899
(Tex. App.—Houston [14th Dist.] 2000, no pet.). Error does not contribute to the
conviction or punishment if the jury’s verdict would have been the same even if
the erroneous evidence had not been admitted. Clay v. State, 240 S.W.3d 895, 904
(Tex. Crim. App. 2007).
Although appellant asserts in his briefing that the trial court erred in denying
his motion to suppress certain evidence recovered from his SUV, he wholly fails to
explain whether or how that erroneous ruling contributed to his conviction or
punishment. See TEX. R. APP. P. 44.2(a) (“If the appellate record in a criminal case
reveals constitutional error that is subject to harmless error review, the court of
107
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.”); cf. Martinez v. State, No. 13-21-00191-CV, 2022 WL
3724107, at *3 (Tex. App.—Corpus Christi–Edinburg Aug. 30, 2022, no pet.)
(mem. op., not designated for publication) (defendant did not adequately brief
complaint trial court erred in denying his motion to suppress where he did not
explain whether or how that ruling contributed to his conviction or punishment).
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.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal if he
does not adequately brief that issue by not providing supporting arguments,
substantive analysis, and appropriate citations to authorities and to the record. See
id.; Russeau v. State, 171 S.W.3d 871, 881 (Tex. Crim. App. 2005); Cardenas v.
State, 30 S.W.3d 384, 393 (Tex. Crim. App. 2000); Wilson v. State, 473 S.W.3d
889, 901 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). Here, appellant’s brief
contains no argument, substantive analysis, or citation to authorities or to the
record to show that he was harmed by the trial court’s purported erroneous denial
of his motion to suppress evidence. See TEX. R. APP. P. 38.1(i); Wyatt v. State, 23
S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“We will not make appellant’s
arguments for him . . . .”); Alvarado v. State, 912 S.W.2d 199, 210 (Tex. Crim.
108
App. 1995) (where appellant’s point of error inadequately briefed, appellant
“presents nothing for our review”); Lawton v. State, 913 S.W.2d 542, 558 (Tex.
Crim. App. 1995) (failure to adequately brief issue, either by failing to specifically
argue and analyze one’s position or provide authorities and record citations, waives
any error on appeal), overruled on other grounds by Mosley v. State, 983 S.W.2d
249 (Tex. Crim. App. 1998); see also Reule v. M & T Mortg., 483 S.W.3d 600, 615
(Tex. App.—Houston [14th Dist.] 2015, pet. denied) (“[W]ithout proper citation,
the voluminous nature of th[e] record makes it difficult to discern where there is
any support for many of [appellant’s] complaints.”). Accordingly, we hold that
appellant waived his complaint that the trial court erred in denying his motion to
suppress because of inadequate briefing. See, e.g., 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 900–01
(holding defendant waived complaint trial court erred in admitting certain evidence
because brief did not contain any argument that he was harmed by purportedly
erroneous admission); see also Leleo v. State, Nos. 01-20-00034-CR,
01-20-00035-CR, 2022 WL 243917, at *37–38 (Tex. App.—Houston [1st Dist.]
Jan. 27, 2022, no pet.) (mem. op., not designated for publication) (declining to
address issue that was inadequately briefed and explaining not appellate court’s
role to construct defendant’s argument for him).
109
Admission of Evidence
In his third issue, appellant argues that the trial court erred in admitting
certain testimony and other evidence because its admission “violated the
attorney[-]client privilege.” See TEX. R. EVID. 503. In his fourth, sixth, eighth,
ninth, and eleventh issues, appellant argues that the trial court erred in admitting
certain testimony and other evidence because it constituted hearsay. In his fifth,
seventh, tenth, and twelfth issues, appellant argues that the trial court erred in
admitting certain testimony and other evidence because it violated his Sixth
Amendment right “to be confronted with the witnesses against him.” See U.S.
CONST. amend. VI.
We review a trial court’s ruling on the admission of evidence for an abuse of
discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker
v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). A
trial court abuses its discretion if it acts arbitrarily, unreasonably, or without
reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d
372, 380 (Tex. Crim. App. 1990). When considering a trial court’s decision to
admit evidence, we will not reverse the trial court’s ruling unless it falls outside the
“zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex.
Crim. App. 1996) (internal quotations omitted). We will uphold a trial court’s
110
evidentiary ruling if it is correct on any theory of law applicable to that ruling. De
La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
A. Attorney-Client Privilege
In his third issue, appellant argues that the trial court erred in admitting the
testimony of Wilson, a legal assistant employed by appellant’s attorney, about
“communications between [a]ppellant’s attorney’s office [and appellant] regarding
[the] motion to modify . . . filed [by the complainant] on February 20, 2019” and
the copy of a February 21, 2019 email from Wilson to appellant because their
admission “violated the attorney[-]client privilege.” See TEX. R. EVID. 503.
“In general, privileges are exclusionary rules of evidence that may be used to
suppress relevant evidence.” McAfee v. State, 467 S.W.3d 622, 642–43 (Tex.
App.—Houston [1st Dist.] 2015, pet. ref’d) (internal quotations omitted). We
review the trial court’s ruling denying applicability of a privilege for an abuse of
discretion. Porter v. State, 513 S.W.3d 695, 700 (Tex. App.—Houston [1st Dist.]
2017, pet. ref’d). We will reverse the trial court’s ruling only if “the trial court
applied an erroneous legal standard, or when no reasonable view of the record
could support the trial court’s conclusion under the correct law and the facts
viewed in the light most favorable to its legal conclusion.” Porter, 513 S.W.3d at
700 (internal quotations omitted). The party asserting a privilege has the burden of
111
showing that the privilege applies. Porter, 513 S.W.3d at 700; McAfee, 467
S.W.3d at 643.
The Texas Rules of Evidence protect from disclosure the communications
between a client and his counsel when they are kept confidential and are made to
facilitate the rendition of legal services. See TEX. R. EVID. 503(b)(1); Cameron v.
State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007); Porter, 513 S.W.3d at 700. The
scope of the privilege is limited to communications “made by a client seeking legal
advice from a lawyer in [the lawyer’s] capacity as such and the communication
must relate to the purpose for which the advice is sought.” Porter, 513 S.W.3d at
700 (alteration in original) (internal quotations omitted); see also State v.
DeAngelis, 116 S.W.3d 396, 403–04 (Tex. App.—El Paso 2003, no pet.).
The application of the attorney-client privilege depends on whether the
communication sought to be protected is “confidential.” Austin v. State, 934
S.W.2d 672, 674 (Tex. Crim. App. 1996) (internal quotations omitted); Williams v.
State, 417 S.W.3d 162, 185–86 (Tex. App.—Houston [1st Dist.] 2013, pet. ref’d).
“A communication is ‘confidential’ if not intended to be disclosed to third persons
other than those” to whom disclosure is made in furtherance of the rendition of
professional legal services to the client or those reasonably necessary for the
transmission of the communication. TEX. R. EVID. 503(a)(5); see also McAfee, 467
S.W.3d at 642.
112
Disclosure by the attorney does not waive the privilege absent the client’s
consent. Porter, 513 S.W.3d at 700; McAfee, 467 S.W.3d at 643. The client can
waive the privilege by voluntarily disclosing or consenting to the disclosure of a
significant part of the privileged matter. TEX. R. EVID. 511; McAfee, 467 S.W.3d
at 643.
Here, we will presume, for purposes of this opinion, that the trial court erred
in admitting the complained-of portion of Wilson’s testimony about
“communications between [a]ppellant’s attorney’s office [and appellant] regarding
[the] motion to modify . . . filed [by the complainant] on February 20, 2019” and
the copy of a February 21, 2019 email from Wilson to appellant about the motion
to modify because it violated the attorney-client privilege. But we must still
perform a harm analysis to determine if the trial court’s purported error requires
reversal of the trial court’s judgment. See Wright v. State, 374 S.W.3d 564, 580–
81 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (presuming, without
deciding, trial court erred in admitting evidence in violation of
attorney-work-product privilege and performing harm analysis); Sanford v. State,
21 S.W.3d 337, 344–47 (Tex. App.—El Paso 2000, no pet.) (after concluding trial
court erred in admitting certain testimony in violation of attorney-client privilege,
conducting harm analysis), abrogated on other grounds by Motilla v. State, 78
S.W.3d 352, 356 n.25 (Tex. Crim. App. 2002); see also Pierce v. State, No.
113
03-03-00536-CR, 2005 WL 1842759, at *3 (Tex. App.—Austin Aug. 3, 2005, no
pet.) (mem. op., not designated for publication) (explaining if trial court erred in
admitting testimony in violation of attorney-client privilege, appellate court may
reverse only if error affected substantial rights).
The admission of evidence in violation of the attorney-client privilege
constitutes non-constitutional error. See Sanford, 21 S.W.3d at 344–45; see also
Olejnik v. State, No. 13-10-307-CR, 2011 WL 2475503, at *4–5 (Tex. App.—
Corpus Christi–Edinburg June 23, 2011, pet. ref’d) (mem. op., not designated for
publication); Pierce, 2005 WL 1842759, at *3. Non-constitutional error requires
reversal only if it affects the substantial rights of the defendant. See TEX. R. APP.
P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011). A
defendant’s substantial rights are affected “when the error had a substantial and
injurious effect or influence in determining the jury’s verdict.” King v. State, 953
S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not overturn a criminal
conviction for non-constitutional error if, after examining the record, we have fair
assurance that the error did not influence the jury or had but a slight effect.
Barshaw, 342 S.W.3d at 93–94.
We review the entire record to determine the effect or influence of the
wrongfully admitted evidence on the jury’s decision. Id.; Motilla, 78 S.W.3d at355–56. In assessing the likelihood that the jury’s decision was improperly
114
influenced, we consider the testimony and physical evidence, the nature of the
evidence supporting the verdict, and the character of the alleged error and how it
might be considered in connection with other evidence in the case. Barshaw, 342
S.W.3d at 94; Motilla, 78 S.W.3d at 355–56. The weight of evidence of the
defendant’s guilt is also relevant in conducting the harm analysis. Neal, 256
S.W.3d at 285; see also Motilla, 78 S.W.3d at 355–60. And we may consider
closing statements and voir dire, jury instructions, the State’s theory, any defensive
theories, and whether the State emphasized the alleged error. Motilla, 78 S.W.3d
at 355–56; Hankins v. State, 180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet.
ref’d).
Appellant fails to assert in his briefing that he was harmed by the admission
of the complained-of portion of Wilson’s testimony and the admission of the
February 21, 2019 email from Wilson to appellant. See Petriciolet v. State, 442
S.W.3d 643, 653–55 (Tex. App.—Houston [1st Dist.] 2014, pet. ref’d) (even if
trial court improperly admitted evidence, appellate court must still determine
whether defendant was harmed by erroneous admission); see, e.g., Cardenas, 30
S.W.3d at 393 (holding defendant waived complaint on appeal because he
inadequately briefed issue by failing to address whether alleged error was
harmless); Chaves v. State, 630 S.W.3d 541, 555, 557–58 (Tex. App.—Houston
[1st Dist.] 2021, no pet.) (holding defendant waived complaint trial court erred in
115
admitting certain evidence because he “failed to adequately brief his assertion that
he was harmed by the admission of” complained-of evidence); Ford v. State, No.
01-17-00213-CR, 2018 WL 1473948, at *6 (Tex. App.—Houston [1st Dist.] Mar.
27, 2018, no pet.) (mem. op., not designated for publication) (appellate court need
not determine whether trial court erred in admitting exhibits where defendant did
not argue in briefing that he was harmed by purportedly erroneous admission of
exhibits); Wilson, 473 S.W.3d at 900–01 (“Here, we do not address whether the
trial court erred in admitting the complained-of extraneous-offense 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.”).
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 adequately brief that issue by not providing supporting arguments,
substantive analysis, and appropriate citations to authorities and to the record. See
id.; Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011); Busby v.
State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Chaves, 630 S.W.3d at 555,
557–58. As the Texas Court of Criminal Appeals has emphasized, an appellate
court has no obligation to construct and compose issues, facts, and arguments with
116
appropriate citations to authorities and the record for the appellant. See Wolfe v.
State, 509 S.W.3d 325, 342–43 (Tex. Crim. App. 2017); Busby, 253 S.W.3d at
673; see also Wyatt, 23 S.W.3d at 23 n.5 (“We will not make appellant’s
arguments for him . . . .”). A brief that does not comply with Texas Rule of
Appellate Procedure 38.1 presents nothing for an appellate court to review. See
Alvarado, 912 S.W.2d at 210.
Here, appellant’s brief contains no argument, explanation, substantive
analysis, or citation to authorities to show that he was harmed by the trial court’s
purportedly erroneous admission of the complained-of portion of Wilson’s
testimony and the admission of the February 21, 2019 email from Wilson to
appellant. See Wyatt, 23 S.W.3d at 23 n.5 (“We will not make appellant’s
arguments for him . . . .”). Accordingly, we hold that appellant has waived, due to
inadequate briefing, his complaint on appeal that the trial court erred in admitting
the complained-of portion of Wilson’s testimony and the copy of a February 21,
2019 email. See, e.g., 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”); Chaves, 630 S.W.3d at 557–58 (holding defendant
waived complaint trial court erred in admitting certain evidence because
appellant’s brief “contain[ed] no argument, explanation, substantive analysis, or
citation to authorities to show that he was harmed by the trial court’s purported
117
erroneous admission of the State’s [evidence]”); Ford, 2018 WL 1473948, at *6;
Wilson, 473 S.W.3d at 900–01 (defendant waived complaint trial court erred in
admitting certain evidence where he failed to “identify[] the harm that he suffered
as a result of the admission of the complained-of evidence”).
B. Hearsay
In his fourth issue, appellant argues that the trial court erred in admitting the
testimony of Harris, a paralegal who previously worked with Terry, the
complainant’s attorney, about “conversations . . . she had with [the complainant]
regarding the filing of [a] motion to modify” because “any statement made by [the
complainant] to . . . Harris” was hearsay. In his sixth issue, appellant argues that
the trial court erred in admitting the testimony of Terry, the complainant’s
attorney, about “the details of [a] conversation . . . he had with [the complainant]
concerning the filing of the motion to modify” because the testimony constituted
hearsay. In his eighth issue, appellant argues that the trial court erred in admitting
the testimony of Weaver, the complainant’s friend, about “statements . . . she
made” to the complainant “during a conversation they [had] concerning [the
complainant’s] relationship with appellant” because “the statement[s] made
by . . . Weaver were in fact hearsay.” In his ninth issue, appellant argues that the
trial court erred in admitting the testimony of Kimberly, the complainant’s cousin,
about “her conversations with [the complainant] about [the complainant’s]
118
relationship with [a]ppellant and that [the complainant’s] text messages were being
monitored” because the testimony constituted hearsay. In his eleventh issue,
appellant argues that the trial court erred in admitting the testimony of Gaston, the
complainant’s therapist, about “statements made by [the complainant] about her
relationship with [a]ppellant” because the statements constituted hearsay.
“Hearsay” is an out-of-court statement offered in evidence to prove the truth
of the matter asserted in the statement. TEX. R. EVID. 801(d) (internal quotations
omitted). Hearsay is generally not admissible unless allowed by statute or rule.
TEX. R. EVID. 802.
1. Harris
In his briefing related to his fourth issue, appellant generally complains
about Harris’s testimony “concerning conversations that she had with [the
complainant] regarding the filing of [a] motion to modify,” but appellant provides
minimal record citations to direct the Court to the specific portions of Harris’s
testimony about which he complains.64 See Thomas v. State, 701 S.W.2d 653, 662
64
We note that an appellate court is not required to search the appellate record to
determine if the record supports appellant’s argument. See Alvarado v. State, 912
S.W.2d 199, 210 (Tex. Crim. App. 1995) (appellate court is not required “to pore
through hundreds of pages of record in an attempt to verify an appellant’s
claims”); Thierry v. State, 288 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d); see also Belle v. State, 543 S.W.3d 871, 879 (Tex. App.—
Houston [14th Dist.] 2018, no pet.) (“[W]e are under no duty to make an
independent search of the record to determine whether an assertion of reversible
error is valid.”). The appellant bears the burden of showing that the record
supports the contentions raised, and he must specify the place in the record where
119
(Tex. Crim. App. 1985) (“It is well settled that mere reference to pages in the
record does not sufficiently identify testimony, objections thereto, and the court’s
rulings thereon to constitute a ground of error.” (emphasis added)); see also Reule,
483 S.W.3d at 615 (“[W]ithout proper citation, the voluminous nature of th[e]
record makes it difficult to discern where there is any support for many of
[appellant’s] complaints.”). From what this Court can discern, appellant appears to
complain about this portion of Harris’s testimony:
matters upon which he relies or of which he complains are shown. See Thomas v.
State, 701 S.W.2d 653, 662 (Tex. Crim. App. 1985) (“It is well settled that mere
reference to pages in the record does not sufficiently identify testimony, objections
thereto, and the court’s rulings thereon to constitute a ground of error.”); In re
C.A.J., No. 01-19-00704-CV, 2021 WL 243900, at *27 (Tex. App.—Houston [1st
Dist.] Jan. 26, 2021, pet. denied) (mem. op.); Gonzalez v. State, No.
02-14-00229-CR, 2015 WL 9244986, at *4 (Tex. App.—Fort Worth Dec. 17,
2015, pet. ref’d) (mem. op., not designated for publication) (“Parties are required
to provide citations to the record in support of their arguments . . . .”); see also
TEX. R. APP. P. 38.1(i). Without appropriate record citations, a brief does not
adequately present an issue for appeal. See Toldson v. Denton Indep. Sch. Dist.,
No. 02-18-00394-CV, 2019 WL 6205245, at *13 (Tex. App.—Fort Worth Nov.
21, 2019, no pet.) (mem. op.). To the extent that appellant attempts to complain
about portions of Harris’s testimony other than those quoted above, we hold that
his complaints are waived due to inadequate briefing. See id. at *12–14 (noting
difficulties with imprecise citation to record and holding issue waived for
inadequate briefing); In re Caldwell-Bays, No. 04-18-00980-CV, 2019 WL
1370316, at *8 (Tex. App.—San Antonio Mar. 27, 2019, orig. proceeding) (mem.
op.) (noting party’s citations to record were imprecise and identifying what court
“believe[d] she [was] referring to”); Parker v. State, No. 02-12-00092-CR, 2013
WL 4714371, at *5 n.3 (Tex. App.—Fort Worth Aug. 30, 2013, pet. ref’d) (mem.
op., not designated for publication) (addressing admission of testimony that
appellate court could discern defendant complained about and holding, to extent
defendant’s argument could be construed to cover any other evidence, argument
was waived due to inadequate briefing because of imprecise record citations).
120
[State]: So yesterday when we were speaking
with the jury you mentioned that you
had two conversations with [the
complainant] regarding when the
filing of that modification was going
to occur; correct?
[Harris]: Yes, ma’am.
[State]: Okay. That very first conversation,
can you remind us about when that
was?
[Harris]: It was February --
[Appellant’s attorney]: . . . Objection. And frankly I can’t
remember what is on the record, but
I’m going to object to this line of
questioning based on attorney-client
privilege, based on right to confront
and based on hearsay.
The Court: I’ll overrule.
[State]: . . . Can you tell us when the first
conversation was?
[Harris]: February 15th.
[State]: Of what year?
[Harris]: 2019.
[State]: And the basis of that conversation,
was it in regards to [the complainant]
having concerns about when [the
motion to modify] was going to be
filed?
121
[Harris]: Yes. She had -- she wanted to file the
motion to modify to seek child
support.
....
[Harris]: And she wanted to wait until
[appellant] had moved out of her
residence.
[State]: Did she say why she wanted him to be
moved out before that motion was
actually filed?
[Harris]: Yes.
[State]: Why?
[Harris]: She said that he would be mad and
she wanted to avoid any
confrontation.
[State]: Okay. And then there was a
subsequent follow-up conversation.
Do you remember when that was?
[Harris]: February 20th. It was a -- the first
conversation, I believe, was on a
Friday. The second one was the
following Wednesday. I contacted
her to see if he had moved out of the
residence. She said that he had. And
I asked if she was ready to file the
motion. She said, yes, she wanted to
go ahead and file it to seek the child
support.
....
122
[Harris]: And she was concerned about when
he would get a copy of it.
[State]: Did she express why she was
concerned when he would get a copy
of it?
[Harris]: Again, she knew he would be mad
and she wanted to -- she -- she knew
he would be mad, and she wanted to
be aware of when to expect a phone
call from him.
The erroneous admission of evidence constitutes non-constitutional error.
Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Solomon v. State, 49
S.W.3d 356, 365 (Tex. Crim. App. 2001). Non-constitutional error requires
reversal only if it affects the substantial rights of the defendant. See TEX. R. APP.
P. 44.2(b); Barshaw, 342 S.W.3d at 93–94. The defendant’s substantial rights are
affected “when the error had a substantial and injurious effect or influence in
determining the jury’s verdict.” King, 953 S.W.2d at 271. We will not overturn a
criminal conviction for non-constitutional error if, after examining the record, we
have fair assurance that the error did not influence the jury or had but a slight
effect. Barshaw, 342 S.W.3d at 93–94.
We review the entire record to determine the effect or influence of the
wrongfully admitted evidence on the jury’s decision. Id.; Motilla, 78 S.W.3d at355–56. In assessing the likelihood that the jury’s decision was improperly
influenced, we consider the testimony and physical evidence, the nature of the
123
evidence supporting the verdict, and the character of the alleged error and how it
might be considered in connection with other evidence in the case. Barshaw, 342
S.W.3d at 94; Motilla, 78 S.W.3d at 355–56. The weight of evidence of the
defendant’s guilt is also relevant in conducting the harm analysis. Neal, 256
S.W.3d at 285; see also Motilla, 78 S.W.3d at 355–60. And we may consider
closing statements and voir dire, jury instructions, the State’s theory, any defensive
theories, and whether the State emphasized the alleged error. Motilla, 78 S.W.3d
at 355–56; Hankins, 180 S.W.3d at 182. Notably, error in the admission of
evidence may be rendered harmless when substantially the same evidence is
admitted elsewhere at trial without objection. See Leday v. State, 983 S.W.2d 713,
717–18 (Tex. Crim. App. 1998).
Our review of the record reveals that Harris, in other portions of her
testimony, stated, without objection, that she had a conversation with the
complainant on February 15, 2019. Harris recounted that the complainant, prior to
February 15, 2019, had met with Terry, her attorney, to discuss the filing of a
motion to modify. Harris had called the complainant “to ask if she wanted to go
forward with the modification, and she said yes.”65 Harris “asked [the
65
Although appellant objected to this statement by Harris, appellant did not to do so
based on hearsay. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.
2004) (objection stating one legal basis may not be used to support a different
legal theory on appeal); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App.
124
complainant] if she was ready to go ahead and file it.” And “[s]he said, no, that
she had asked [appellant] to move out of the [her] residence and she didn’t want to
file it until he had moved out.” The complainant “wanted to wait until [appellant
had] moved out of her home.”
Further, we note that Terry, in portions of his testimony, stated, without
objection, that the complainant had told him that “she was . . . afraid of” appellant.
And that the complainant’s “main point . . . was [that] she didn’t want [appellant]
to find out about th[e] motion [to modify] until after he was out of [her] house.”
Terry agreed not to file the motion to modify “until [appellant] was out of [the
complainant’s] house.” Terry also stated that he knew the complainant “was very
afraid of [appellant] and what his actions were capable of and she didn’t want to
make him mad.” And the complainant had “mention[ed] [appellant’s] temper and
how mad he would get about certain things and how controlling he was and how he
didn’t like her being around her family and other people.”66
As the Texas Court of Criminal Appeals has explained, the erroneous
admission of evidence is harmless when “other [similar] evidence was received
1995); see also Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012) (“The
point of error on appeal must comport with the objection made at trial.”).
66
Although appellant objected to this statement by Terry, appellant did not do so
based on hearsay. See Heidelberg, 144 S.W.3d at 537 (objection stating one legal
basis may not be used to support a different legal theory on appeal); Broxton, 909
S.W.2d at 918; see also Clark, 365 S.W.3d at 339 (“The point of error on appeal
must comport with the objection made at trial.”).
125
without objection, either before or after the complained-of ruling.” Coble, 330
S.W.3d at 282 (internal quotations omitted); see also Lane v. State, 151 S.W.3d
188, 192–93 (Tex. Crim. App. 2004) (error in admission of evidence cured where
same evidence comes in elsewhere without objection); Leday, 983 S.W.2d at 717–
18 (erroneous admission of evidence is harmless when equivalent evidence is
admitted elsewhere without objection); Mayes v. State, 816 S.W.2d 79, 88 (Tex.
Crim. App. 1991) (error in admission of evidence may be rendered harmless when
“substantially the same evidence” is admitted elsewhere without objection);
Pacheco v. State, No. 01-18-00605-CR, 2020 WL 4299581, at *11 (Tex. App.—
Houston [1st Dist.] July 28, 2020, no pet.) (mem. op., not designated for
publication) (defendant did not object to other portions of witness’s testimony that
were substantially similar to portion of testimony he complained of on appeal).
Based on the foregoing, we hold that even if the trial court erred in
overruling appellant’s hearsay objection to the above-quoted portion of Harris’s
testimony, any error was harmless because it was duplicative of evidence admitted
elsewhere without objection. See Burks v. State, 876 S.W.2d 877, 897–98 (Tex.
Crim. App. 1994) (holding law enforcement officer’s erroneously admitted hearsay
testimony did not harm defendant when testimony of other trial witnesses proved
same facts); Washington v. State, 485 S.W.3d 633, 638–39 (Tex. App.—Houston
[1st Dist.] 2016, no pet.) (noting error in admission of evidence may be rendered
126
harmless when substantially same evidence is admitted elsewhere without
objection).
We overrule appellant’s fourth issue.
2. Terry
In his briefing related to his sixth issue, appellant generally complains about
Terry’s testimony “concerning the details of [a] conversation . . . he had with [the
complainant] concerning the filing of the motion to modify,” but he only directs
this Court to one portion of Terry’s testimony.67 See Thomas, 701 S.W.2d at 662(“It is well settled that mere reference to pages in the record does not sufficiently
identify testimony, objections thereto, and the court’s rulings thereon to constitute a
ground of error.” (emphasis added)); see also Reule, 483 S.W.3d at 615(“[W]ithout proper citation, the voluminous nature of th[e] record makes it difficult
to discern where there is any support for many of [appellant’s] complaints.”). In
that portion of Terry’s testimony, he stated:
67
As previously stated, an appellate court is not required to search the appellate
record to determine if the record supports appellant’s argument. See Alvarado,
912 S.W.2d at 210; Thierry, 288 S.W.3d at 86; see also Belle, 543 S.W.3d at 879.
The appellant bears the burden of showing that the record supports the contentions
raised and must specify the place in the record where matters upon which he relies
or of which he complains are shown. See Thomas, 701 S.W.2d at 662; In re
C.A.J., 2021 WL 243900, at *27; Gonzalez, 2015 WL 9244986, at *4; see also
TEX. R. APP. P. 38.1(i). Without appropriate record citations, a brief does not
adequately present an issue for appeal. See Toldson, 2019 WL 6205245, at *13.
To the extent that appellant attempts to complain about a portion of Terry’s
testimony other than that which is quoted above, we hold that his complaints are
waived due to inadequate briefing. See id. at *12–14; In re Caldwell-Bays, 2019
WL 1370316, at *8; Parker, 2013 WL 4714371, at *5 n.3.
127
[State]: And what -- can you tell us what she
advised about her being afraid?
....
[Appellant’s counsel]: I’m going to object; hearsay and
relevance.
The Court: Overruled.
[Terry]: She said she was afraid and concerned
about [appellant] getting served with
those papers while he was still in the
house and she didn’t want us to -- to
serve his attorney until after he was
out of the house.
As noted above, the erroneous admission of evidence is harmless when
“other [similar] evidence was received without objection, either before or after the
complained-of ruling.” Coble, 330 S.W.3d at 282 (internal quotations omitted);
see also Lane, 151 S.W.3d at 192–93 (error in admission of evidence cured where
same evidence comes in elsewhere without objection); Leday, 983 S.W.2d at 717–
18 (erroneous admission of evidence is harmless when equivalent evidence is
admitted elsewhere without objection); Mayes, 816 S.W.2d at 88 (error in
admission of evidence may be rendered harmless when “substantially the same
evidence” is admitted elsewhere without objection); Pacheco, 2020 WL 4299581,
at *11 (defendant did not object to other portions of witness’s testimony that were
substantially similar to portion of testimony he complained-of on appeal).
128
Notably, Terry, in other portions of his testimony, stated, without objection,
that the complainant told him that “she was . . . afraid of” appellant. And that the
complainant’s “main point . . . was [that] she didn’t want [appellant] to find out
about th[e] motion [to modify] until after he was out of [her] house.” Terry agreed
not to file the motion to modify “until [appellant] was out of [the complainant’s]
house.” Terry also testified that he knew the complainant “was very afraid of
[appellant] and what his actions were capable of and she didn’t want to make him
mad.” And the complainant had “mention[ed] [appellant’s] temper and how mad
he would get about certain things and how controlling he was and how he didn’t
like her being around her family and other people.”68
Further, Harris, in portions of her testimony, stated, without objection, that
she had a conversation with the complainant on February 15, 2019. And that the
complainant, prior to February 15, 2019, had met with Terry to discuss the filing of
a motion to modify. Harris called the complainant “to ask if she wanted to go
forward with the modification, and she said yes.”69 When Harris “asked [the
68
Although appellant objected to this statement by Terry, appellant did not do so
based on hearsay. See Heidelberg, 144 S.W.3d at 537 (objection stating one legal
basis may not be used to support a different legal theory on appeal); Broxton, 909
S.W.2d at 918; see also Clark, 365 S.W.3d at 339 (“The point of error on appeal
must comport with the objection made at trial.”).
69
Although appellant objected to this statement by Harris, appellant did not to do so
based on hearsay. See Heidelberg, 144 S.W.3d at 537 (objection stating one legal
basis may not be used to support a different legal theory on appeal); Broxton, 909
129
complainant] if she was ready to go ahead and file it,” “[s]he said, no, that she had
asked [appellant] to move out of the [her] residence and she didn’t want to file it
until he had moved out.” The complainant “wanted to wait until [appellant had]
moved out of her home.”
Based on the foregoing, we hold that even if the trial court erred in
overruling appellant’s hearsay objection to the above-quoted portion of Terry’s
testimony, any error was harmless because it was duplicative of evidence admitted
elsewhere without objection. See Burks, 876 S.W.2d at 897–98 (holding law
enforcement officer’s erroneously admitted hearsay testimony did not harm
defendant when testimony of other trial witnesses proved same facts); Washington,
485 S.W.3d at 638–39 (noting error in admission of evidence may be rendered
harmless when substantially same evidence is admitted elsewhere without
objection).
We overrule appellant’s sixth issue.
3. Weaver
In his briefing related to his eighth issue, appellant complains about
Weaver’s testimony “concerning statements that she made in response to
statements by [the complainant].” Specifically, appellant asserts that the trial court
erred in admitting the following testimony of Weaver:
S.W.2d at 918; see also Clark, 365 S.W.3d at 339 (“The point of error on appeal
must comport with the objection made at trial).
130
[State]: . . . Did you give [the complainant]
any advice?
[Weaver]: I did.
[State]: Okay. What was your advice?
....
[Appellant’s counsel]: That’s hearsay and relevance.
The Court: Overrule as to what [Weaver] said . . .
....
[Weaver]: I told [the complainant] that if
[appellant] was cheating on her again
that she should, as I had told her
before, get legal things settled with
him with regards to [the child]. And
she had asked me --
....
[Weaver]: So I told her that after thinking about
the situation that it would be best if
she had an amicable split with
[appellant], that -- and then she could
go on with permanent changes to her
house, like changing the locks.
As previously explained, the erroneous admission of evidence constitutes
non-constitutional error. Coble, 330 S.W.3d at 280; Solomon, 49 S.W.3d at 365.
Non-constitutional error requires reversal only if it affects the substantial rights of
the defendant. See TEX. R. APP. P. 44.2(b); Barshaw, 342 S.W.3d at 93–94. The
defendant’s substantial rights are affected “when the error had a substantial and
131
injurious effect or influence in determining the jury’s verdict.” King, 953 S.W.2d
at 271. We will not overturn a criminal conviction for non-constitutional error if,
after examining the record, we have fair assurance that the error did not influence
the jury or had but a slight effect. Barshaw, 342 S.W.3d at 93–94.
We review the entire record to determine the effect or influence of the
wrongfully admitted evidence on the jury’s decision. Id.; Motilla, 78 S.W.3d at355–56. In assessing the likelihood that the jury’s decision was improperly
influenced, we consider the testimony and physical evidence, the nature of the
evidence supporting the verdict, and the character of the alleged error and how it
might be considered in connection with other evidence in the case. Barshaw, 342
S.W.3d at 94; Motilla, 78 S.W.3d at 355–56. The weight of evidence of the
defendant’s guilt is also relevant in conducting the harm analysis. Neal, 256
S.W.3d at 285; see also Motilla, 78 S.W.3d at 355–60. And we may consider
closing statements and voir dire, jury instructions, the State’s theory, any defensive
theories, and whether the State emphasized the alleged error. Motilla, 78 S.W.3d
at 355–56; Hankins, 180 S.W.3d at 182.
Appellant failed to assert in his briefing that he was harmed by the
admission of the complained-of portion of Weaver’s testimony. See Petriciolet,
442 S.W.3d at 653–55 (even if trial court improperly admitted evidence, appellate
court must still determine whether defendant was harmed by erroneous admission);
132
see, e.g., Cardenas, 30 S.W.3d at 393 (holding defendant waived complaint on
appeal because he inadequately briefed issue by failing to address whether alleged
error was harmless); Chaves, 630 S.W.3d at 555, 557–58 (holding defendant
waived complaint trial court erred in admitting certain evidence because he “failed
to adequately brief his assertion that he was harmed by the admission of”
complained-of evidence); Ford, 2018 WL 1473948, at *6 (appellate court need not
determine whether trial court erred in admitting exhibits where defendant did not
argue in briefing that he was harmed by purportedly erroneous admission of
exhibits); Wilson, 473 S.W.3d at 900–01 (“Here, we do not address whether the
trial court erred in admitting the complained-of extraneous-offense 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.”).
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 adequately brief that issue by not providing supporting arguments,
substantive analysis, and appropriate citations to authorities and to the record. See
id.; Lucio, 351 S.W.3d at 896–97; Busby, 253 S.W.3d at 673; Chaves, 630 S.W.3d
at 555, 557–58. An appellate court has no obligation to construct and compose
133
issues, facts, and arguments with appropriate citations to authorities and the record
for the appellant. See Wolfe, 509 S.W.3d at 342–43; Busby, 253 S.W.3d at 673; see
also Wyatt, 23 S.W.3d at 23 n.5 (“We will not make appellant’s arguments for
him . . . .”). A brief that does not comply with Texas Rule of Appellate Procedure
38.1 presents nothing for an appellate court to review. See Alvarado, 912 S.W.2d
at 210.
Although appellant argues that the trial court erred in admitting the
complained-of portion of Weaver’s testimony, appellant’s briefing contains no
argument, explanation, substantive analysis, or citation to authorities to show that
he was harmed by the trial court’s purportedly erroneous admission.70 See Wyatt,
23 S.W.3d at 23 n.5 (“We will not make appellant’s arguments for him . . . .”).
70
In his reply brief, appellant attempts to redress his failure to “brief whether the
admission of . . . Weaver’s testimony over a hearsay objection resulted in harm
under [a] non-constitutional harm analysis” by stating that “[i]t is clear that the
testimony of . . . Weaver violated [a]ppellant’s substantial rights to a fair trial.”
This is not sufficient. See King v. State, 17 S.W.3d 7, 23 (Tex. App.—Houston
[14th Dist.] 2000, pet. ref’d) (“Conclusory arguments . . . present nothing for our
review.”); see also Chaves v. State, 630 S.W.3d 541, 558 (Tex. App.—Houston
[1st Dist.] 2021, no pet.) (holding defendant inadequately briefed issue, where
although he argued trial court erred in admitting exhibits, he only provided two
conclusory sentences asserting he suffered harm); Brown v. State, Nos.
01-18-00594-CR, 01-18-00595-CR, 2020 WL 4210630, at *4 (Tex. App.—
Houston [1st Dist.] July 23, 2020, no pet.) (mem. op., not designated for
publication) (defendant waived appellate complaint where brief contained single
conclusory sentence without citation to appropriate authority); Linney v. State, 401
S.W.3d 764, 783 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (“We need
not decide th[e] issue . . . because [defendant’s] conclusory statement that the
cumulative harm of the trial court’s errors adversely affected his substantial rights
is insufficient to maintain his burden to adequately brief the point of error.”).
134
Accordingly, we hold that appellant has waived his complaint on appeal that the
trial court erred in admitting the complained-of portion of Weaver’s testimony due
to inadequate briefing. See, e.g., 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”); Chaves, 630 S.W.3d at 557–58 (holding
defendant waived complaint trial court erred in admitting certain evidence because
appellant’s 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 [evidence]”); Ford, 2018 WL 1473948, at *6;
Wilson, 473 S.W.3d at 900–01 (defendant waived complaint trial court erred in
admitting certain evidence where he failed to “identify[] the harm that he suffered
as a result of the admission of the complained-of evidence”).
4. Kimberly
In his briefing related to his ninth issue, appellant generally complains about
Kimberly’s testimony that the complainant “told her that her [tele]phone calls and
text messages were being monitored.” And appellant generally complains that
Kimberly “read text messages from [the complainant]” during her testimony. But
135
appellant does not specifically identify in his briefing the portions of Kimberly’s
testimony about which he complains.71
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) (emphasis added). An
appellant waives an issue on appeal if he does not adequately brief that issue by not
providing supporting arguments, substantive analysis, and appropriate citations to
authorities and to the record. See id.; Lucio, 351 S.W.3d at 896–97; Busby, 253
S.W.3d at 673; Chaves, 630 S.W.3d at 555, 557–58.
Further, it is well settled that “mere references to pages in the record does
not sufficiently identify testimony, the objections thereto, and the court’s rulings
thereon to constitute a ground of error.” Thomas, 701 S.W.2d at 662; see also
Thierry v. State, 288 S.W.3d 80, 86 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d). An appellate court need not “scour the records” for support of appellant’s
assertion of error. Ahmad v. State, 615 S.W.3d 496, 502 (Tex. App.—Houston [1st
Dist.] 2020, no pet.); Thierry, 288 S.W.3d at 86; see also Reule, 483 S.W.3d at 615
71
In the portion of his briefing where he states that Kimberly was erroneously
“permitted to testify that [the complainant] told her that her [tele]phone calls and
text messages were being monitored” and allowed to “read text messages from
[the complainant],” appellant only discusses his objection to Kimberly’s testimony
based on the Confrontation Clause and does not mention any hearsay objections
that he purportedly raised.
136
(“[W]ithout proper citation, the voluminous nature of th[e] record makes it difficult
to discern where there is any support for many of [appellant’s] complaints.”).
The appellant bears the burden of showing that the record supports the
contentions raised and must specify the place in the record where matters upon
which he relies or of which he complains are shown. See Thomas, 701 S.W.2d at
662; In re C.A.J., No. 01-19-00704-CV, 2021 WL 243900, at *27 (Tex. App.—
Houston [1st Dist.] Jan. 26, 2021, pet. denied) (mem. op.); Gonzalez v. State, No.
02-14-00229-CR, 2015 WL 9244986, at *4 (Tex. App.—Fort Worth Dec. 17,
2015, pet. ref’d) (mem. op., not designated for publication); see also TEX. R. APP.
P. 38.1(i). Without appropriate record citations, a brief does not adequately
present an issue for appeal. See Toldson v. Denton Indep. Sch. Dist., No.
02-18-00394-CV, 2019 WL 6205245, at *13 (Tex. App.—Fort Worth Nov. 21,
2019, no pet.) (mem. op.); see also Alvarado, 912 S.W.2d at 210 (brief that does
not comply with Texas Rule of Appellate Procedure 38.1 presents nothing for
appellate court to review). Because appellant did not identify the portions of
Kimberly’s testimony about which he complains with appropriate citations to the
record, we hold that appellant waived his complaint related to Kimberly’s
137
testimony due to inadequate briefing.72 See TEX. R. APP. P. 38.1(i); Lucio, 351
S.W.3d at 896–97; Busby, 253 S.W.3d at 673; Chaves, 630 S.W.3d at 555, 557–58.
5. Gaston
In his briefing related to his eleventh issue, appellant generally complains
that Gaston testified “about historical events that occurred between [a]ppellant and
[the complainant].” Appellant fails to direct this Court to the specific portions of
Gaston’s testimony about which he complains, and instead tells the Court to “see
[the] statement of facts” in his appellant’s brief.
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) (emphasis added). An
appellant waives an issue on appeal if he does not adequately brief that issue by not
72
We also note that Janeth, the complainant’s friend, testified that prior to her death,
the complainant “express[ed] . . . concern” about Janeth sending her text messages
because “it appear[ed] as if [her] text messages were being monitored.” And
Yolanda, the complainant’s mother, testified about the complainant’s text
messages being monitored by appellant. Appellant does not complain on appeal
that the trial court erred in admitting Janeth’s or Yolanda’s testimony about the
complainant’s text messages being monitored. Thus, to the extent that appellant
has not waived his complaint about Kimberly’s testimony due to inadequate
briefing, the testimony about which he generally complains is duplicative of
evidence admitted elsewhere that he has not challenged on appeal. See Burks v.
State, 876 S.W.2d 877, 897–98 (Tex. Crim. App. 1994) (holding law enforcement
officer’s erroneously admitted hearsay testimony did not harm defendant when
testimony of other trial witnesses proved same facts); Washington v. State, 485
S.W.3d 633, 638–39 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (noting error
in admission of evidence may be rendered harmless when substantially same
evidence is admitted elsewhere without objection).
138
providing supporting arguments, substantive analysis, and appropriate citations to
authorities and to the record. See id.; Lucio, 351 S.W.3d at 896–97; Busby, 253
S.W.3d at 673; Chaves, 630 S.W.3d at 555, 557–58.
Further, it is well settled that “mere references to pages in the record does
not sufficiently identify testimony, the objections thereto, and the court’s rulings
thereon to constitute a ground of error.” Thomas, 701 S.W.2d at 662; see also
Thierry, 288 S.W.3d at 86. An appellate court need not “scour the records” for
support of appellant’s assertion of error. Ahmad, 615 S.W.3d at 502; Thierry, 288
S.W.3d at 86; see also Reule, 483 S.W.3d at 615 (“[W]ithout proper citation, the
voluminous nature of th[e] record makes it difficult to discern where there is any
support for many of [appellant’s] complaints.”).
As previously explained, the appellant bears the burden of showing that the
record supports the contentions raised and must specify the place in the record
where matters upon which he relies or of which he complains are shown. See
Thomas, 701 S.W.2d at 662; In re C.A.J., 2021 WL 243900, at *27; Gonzalez,
2015 WL 9244986, at *4; see also TEX. R. APP. P. 38.1(i); see also Reule, 483
S.W.3d at 615 (“[W]ithout proper citation, the voluminous nature of th[e] record
makes it difficult to discern where there is any support for many of [appellant’s]
complaints.”). Without appropriate record citations, a brief does not adequately
present an issue for appeal. See Toldson, 2019 WL 6205245, at *13; see also
139
Alvarado, 912 S.W.2d at 210 (brief that does not comply with Texas Rule of
Appellate Procedure 38.1 presents nothing for appellate court to review). Because
appellant did not identify the portions of Gaston’s testimony about which he
complains with appropriate citations to the record, we hold he has waived his
complaint related to Gaston’s testimony due to inadequate briefing.
Additionally, we note that appellant, in his briefing, fails to argue, explain,
and provide substantive analysis and citations to authorities to show that he was
harmed by the trial court’s purportedly erroneous admission of Gaston’s testimony
“about historical events that occurred between [a]ppellant and [the
complainant].”73 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, 509 S.W.3d at 342–43; Busby, 253 S.W.3d at 673;
73
In his reply brief, appellant attempts to redress his failure to explain
“how . . . Gaston’s testimony and notes . . . caused him to suffer harm under [a]
non-constitutional harm analysis” by stating that “[i]t is clear that the testimony
of . . . Gaston . . . violated [a]ppellant’s substantial rights to a fair trial.” This is
not sufficient. See King, 17 S.W.3d at 23 (“Conclusory arguments . . . present
nothing for our review.”); see also Chaves, 630 S.W.3d at 558 (holding defendant
inadequately briefed issue, where although he argued trial court erred in admitting
exhibits, he only provided two conclusory sentences asserted that he suffered
harm); Brown, 2020 WL 4210630, at *4 (defendant waived appellate complaint
where brief contained single conclusory sentence without citation to appropriate
authority); Linney, 401 S.W.3d at 783 (“We need not decide th[e]
issue . . . because [defendant’s] conclusory statement that the cumulative harm of
the trial court’s errors adversely affected his substantial rights is insufficient to
maintain his burden to adequately brief the point of error.”).
140
see also Wyatt, 23 S.W.3d at 23 n.5 (“We will not make appellant’s arguments for
him . . . .”).
Thus, we further hold that appellant waived his complaint related to
Gaston’s testimony due to inadequate briefing because appellant failed to assert in
his briefing that he was harmed by the admission of Gaston’s testimony “about
historical events that occurred between [a]ppellant and [the complainant].” See,
e.g., 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”); Chaves, 630 S.W.3d at 557–58 (holding defendant waived complaint
trial court erred in admitting certain evidence because appellant’s 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 [evidence]”); Ford, 2018 WL 1473948, at *6; Wilson, 473
S.W.3d at 900–01 (defendant waived complaint trial court erred in admitting
certain evidence where he failed to “identify[] the harm that he suffered as a result
of the admission of the complained-of evidence”).
C. Confrontation Clause
In his fifth issue, appellant argues that the trial court erred in admitting the
“testimony of [a] conversation between . . . Harris,” a paralegal who worked with
the complainant’s attorney, and the complainant because appellant “objected to any
141
statement made by [the complainant] to . . . Harris as . . . violating [his] right to
confront” and appellant “was not afforded the opportunity to cross-examine” the
complainant. (Internal quotations omitted.) In his seventh issue, appellant argues
that the trial court erred in admitting “statements made by [the complainant] to her
lawyer . . . Terry concerning [a]ppellant” because appellant made a “confrontation
objection” at trial and appellant “was not afforded the opportunity to
cross-examine” the complainant. (Internal quotations omitted.) In his tenth issue,
appellant argues that the trial court erred in admitting the testimony of Kimberly,
the complainant’s cousin, that the complainant “told her that her [tele]phone calls
and text messages were being monitored” and erred in admitting copies of the “text
messages from [the complainant] concerning her belief that her text messages were
being monitored” because appellant made a “confrontation objection” at trial and
appellant “was not afforded the opportunity to cross-examine” the complainant.
(Internal quotations omitted.) In his twelfth issue, appellant argues that the trial
court erred in admitting “testimony [of] . . . Gaston, [the complainant’s] therapist,
concerning details of events that occurred during the relationship between [the
complainant] and [a]ppellant” because appellant made a “confrontation objection”
at trial and appellant “was not afforded the opportunity to cross-examine” the
complainant. (Internal quotations omitted.).
142
The Confrontation Clause of the United States Constitution provides that
“[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. CONST. amend. VI; see also
Sohail v. State, 264 S.W.3d 251, 258 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref’d) (“A defendant has a constitutional right to confront and cross-examine the
witnesses against him.”). The Confrontation Clause provides two types of
protections for a criminal defendant: the right physically to face those who testify
against him and the right to conduct cross-examination. Pennsylvania v. Ritchie,
480 U.S. 39, 51 (1987); see also Coy v. Iowa, 487 U.S. 1012, 1016 (1988)
(Confrontation Clause “guarantees [a] defendant a face-to-face meeting with
witnesses appearing before the trier of fact”). The Confrontation Clause bars the
admission of testimonial statements of a witness who does not appear at trial unless
that witness is unavailable and the defendant had a prior opportunity for
cross-examination. Crawford v. Washington, 541 U.S. 36, 59 (2004); Russeau,
171 S.W.3d at 880.
Here, we will presume, for purposes of this opinion, that the trial court erred
in admitting the complained-of testimony of Harris, Terry, Kimberly, and Gaston
and the complained-of text-message evidence because the admission of such
evidence violated appellant’s Sixth Amendment right “to be confronted with the
witnesses against him.” See U.S. CONST. amend. VI. But, even if the trial court’s
143
erroneous admission of evidence constituted a violation of appellant’s
constitutional rights, we must still perform a harm analysis and must reverse a
judgment of conviction unless we determine beyond a reasonable doubt that the
error did not contribute to the conviction. See TEX. R. APP. P. 44.2(a); Henriquez
v. State, 580 S.W.3d 421, 429 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d);
see also Lee v. State, 418 S.W.3d 892, 899 (Tex. App.—Houston [14th Dist.]
2013, pet. ref’d) (“A Confrontation Clause violation is constitutional error that
requires reversal unless we conclude beyond a reasonable doubt that the error was
harmless.”).
In conducting the harm-analysis, the critical inquiry is not whether the
evidence supported the verdict absent the erroneously admitted evidence, but rather
“the likelihood that the constitutional error was actually a contributing factor in the
jury’s deliberations.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007);
see also Henriquez, 580 S.W.3d at 429. We must “calculate, as nearly as possible,
the probable impact of the error on the jury in light of the other evidence.”
McCarthy v. State, 65 S.W.3d 47, 55 (Tex. Crim. App. 2001). While our review
must focus on the error and its effect, “the presence of other overwhelming
evidence that was properly admitted which supports the material fact to which the
inadmissible evidence was directed may be an important factor in the evaluation of
harm.” Wall v. State, 184 S.W.3d 730, 746 (Tex. Crim. App. 2006). In
144
determining if the constitutional error may be declared harmless beyond a
reasonable doubt, we may consider: (1) how important the out-of-court statement
was to the State’s case; (2) whether the out-of-court statement was cumulative of
other evidence; (3) the presence or absence of evidence corroborating or
contradicting the out-of-court statement on material points; and (4) the overall
strength of the State’s case. Scott, 227 S.W.3d at 690; Gutierrez v. State, 516
S.W.3d 593, 599 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).
Appellant fails to assert in his briefing that he was harmed by the admission,
over his Confrontation-Clause objection, of the complained-of portions of Harris’s,
Terry’s, Kimberly’s, and Gaston’s testimony and the complained-of text-message
evidence. See Petriciolet, 442 S.W.3d at 653–55 (even if trial court improperly
admitted evidence, appellate court must still determine whether defendant was
harmed by erroneous admission); see, e.g., Cardenas, 30 S.W.3d at 393 (holding
defendant waived complaint on appeal because he inadequately briefed issue by
failing to address whether alleged error was harmless); White v. State, No.
01-20-00238-CR, 2022 WL 2674214, at *7 (Tex. App.—Houston [1st Dist.] July
12, 2022, no pet.) (mem. op., not designated for publication) (holding defendant’s
challenge to testimony based on Confrontation Clause waived because defendant
“fail[ed] to address in any way how he was harmed by its admission, an element he
[was] required to establish on appeal”); Bradshaw v. State, No. 01-19-00611-CR,
145
2020 WL 7062589, at *5 (Tex. App.—Houston [1st Dist.] Dec. 3, 2020, no pet.)
(mem. op., not designated for publication) (defendant waived
Confrontation-Clause complaint where he failed to argue he was harmed by
allegedly erroneous admission of evidence); Crawford v. State, 595 S.W.3d 792,
801 (Tex. App.—San Antonio 2019, pet. ref’d) (holding defendant waived
complaint trial court erred in admitting certain testimony that violated his right to
confrontation because defendant “d[id] [not] explain how he was harmed as a
result”); Ford, 2018 WL 1473948, at *6 (appellate court need not determine
whether trial court erred in admitting exhibits where defendant did not argue in
briefing that he was harmed by admission of exhibits); Wilson, 473 S.W.3d at 900–
01 (“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.”).
As previously explained, 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.” TEX. R. APP. P. 38.1(i). An appellant waives
an issue on appeal if he does not adequately brief that issue by not presenting
supporting arguments, substantive analysis, and citation to authorities. See id.;
Lucio, 351 S.W.3d at 896–97; Busby, 253 S.W.3d at 673; Chaves, 630 S.W.3d at
146
555, 557–58. 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, 509 S.W.3d at 342–43; Busby, 253 S.W.3d at 673;
see also Wyatt, 23 S.W.3d at 23 n.5 (“We will not make appellant’s arguments for
him . . . .”). A brief that does not comply with Texas Rule of Appellate Procedure
38.1 presents nothing for an appellate court to review. See Alvarado, 912 S.W.2d
at 210.
Although appellant argues that the trial court erred in admitting certain
complained-of testimony and text-message evidence in violation of his Sixth
Amendment right to confrontation, his briefing contains no argument, explanation,
substantive analysis, or citation to authorities to show that he was harmed by the
trial court’s purported erroneous admission.74 See Wyatt, 23 S.W.3d at 23 n.5
74
In his reply brief, appellant attempts to redress his “failure to brief the harm
resulting from the admission” of the complained-of testimony and the
complained-of text-message evidence, but even in his reply brief appellant fails to
explain “the likelihood that the [trial court’s purported] constitutional error was
actually a contributing factor in the jury’s deliberations.” Scott v. State, 227
S.W.3d 670, 690 (Tex. Crim. App. 2007); see also Henriquez v. State, 580 S.W.3d
421, 429 (Tex. App.—Houston [1st Dist.] 2019, pet. ref’d). And he fails to
analyze: (1) how important the complained-of out-of-court statements were to the
State’s case; (2) whether the complained-of out-of-court statements were
cumulative of other evidence; (3) the presence or absence of evidence
corroborating or contradicting the complained-of out-of-court statements on
material points; and (4) the overall strength of the State’s case. Scott, 227 S.W.3d
at 690; Gutierrez v. State, 516 S.W.3d 593, 599 (Tex. App.—Houston [1st Dist.]
2017, pet. ref’d). Appellant, in his reply brief, does not remedy his failure to
provide argument, substantive analysis, or citation to authorities to show that he
was harmed by the trial court’s purported erroneous admission of the
147
(“We will not make appellant’s arguments for him . . . .”). Accordingly, we hold
that appellant waived, due to inadequate briefing, his complaints in his fifth,
seventh, tenth, and twelfth issues that the trial court erred in admitting the
complained-of testimony of Harris, Terry, Kimberly, and Gaston and the
complained-of text-message evidence in violation of his Sixth Amendment right to
confrontation. See, e.g., 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”); Chaves, 630 S.W.3d at 557–58 (holding defendant
waived complaint trial court erred in admitting certain evidence because
appellant’s 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 [evidence]”); Ford, 2018 WL 1473948, at *6;
Wilson, 473 S.W.3d at 900–01 (defendant waived complaint trial court erred in
admitting certain evidence where he failed to “identify[] the harm that he suffered
as a result of the admission of the complained-of evidence”).
complained-of testimony and the complained-of text-message evidence. Cf. Cantu
v. State, No. 13-08-00666-CR, 2010 WL 4922914, at *3 (Tex. App.—Corpus
Christi–Edinburg Nov. 30, 2010, no pet.) (mem. op., not designated for
publication) (where defendant’s only discussion of harm was contained in his
reply brief, defendant did not remedy his failure to perform harm analysis); see
also Ward v. State, No. 14-15-00473-CR, 2016 WL 6238339, at *4 (Tex. App.—
Houston [14th Dist.] Oct. 25, 2016, pet. ref’d) (argument not raised until reply
brief was waived).
148
Motion for Mistrial
In his thirteenth issue, appellant argues that the trial court erred in denying
his motion for mistrial because the State asked Detective Hawkins “whether
[a]ppellant intentionally caused the death of [the complainant] by causing a blunt
trauma injury to her head” and “all witnesses, whether expert or lay[,] . . . [are
prohibited] from opining about [the] guilt or innocence of [the] accused.”
We review the denial of a motion for mistrial for an abuse of discretion.
Archie v. State, 221 S.W.3d 695, 699 (Tex. Crim. App. 2007). In applying an
abuse-of-discretion standard of review, we uphold the trial court’s decision to deny
a mistrial “if it was within the zone of reasonable disagreement.” Id.; see also
Griffin v. State, 571 S.W.3d 404, 416 (Tex. App.—Houston [1st Dist.] 2019, pet.
ref’d). In determining whether a trial court abused its discretion by denying a
mistrial, we balance three factors: (1) the severity of the misconduct (including its
prejudicial effect), (2) the effectiveness of the curative measures taken, and (3) the
certainty of the conviction or punishment assessed absent the misconduct.
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004); Verdine v. State, No.
01-18-00884-CR, 2020 WL 1584468, at *9 (Tex. App.—Houston [1st Dist.] Apr.
2, 2020, pet. ref’d) (mem. op., not designated for publication).
“Mistrial is an appropriate remedy in extreme circumstances for a narrow
class of highly prejudicial and incurable errors.” Ocon v. State, 284 S.W.3d 880,
149
884 (Tex. Crim. App. 2009) (internal quotations omitted); see also Archie v. State,
340 S.W.3d 734, 739 (Tex. Crim. App. 2011) (granting motion for mistrial is
appropriate only when “the objectionable events are so emotionally inflammatory
that curative instructions are not likely to prevent the jury from being unfairly
prejudiced against the defendant” (internal quotations omitted)); Hawkins, 135
S.W.3d at 77 (mistrial is trial court’s remedy for improper conduct that is “so
prejudicial that expenditure of further time and expense would be wasteful and
futile” (internal quotations omitted)); Williams, 417 S.W.3d at 175 (“A mistrial is
an extreme remedy and should be exceedingly uncommon.”). Otherwise, when the
prejudice is curable, an instruction by the trial court to disregard eliminates the
need for a mistrial. Young v. State, 137 S.W.3d 65, 69 (Tex. Crim. App. 2004).
Appellant’s complaint that the trial court erred in denying his motion for
mistrial relates to the following portion of Detective Hawkins’s testimony:
[State]: Did this defendant intentionally cause
the death of [the complainant] by
causing blunt trauma to her head?
[Appellant’s counsel]: I’m going --
[Hawkins]: Yes.
[Appellant’s counsel]: -- to object. That calls for speculation
and invades the province of the jury.
The Court: Sustained.
150
[Appellant’s counsel]: I ask that the jury be instructed to
disregard the statement.
The Court: The answer given after the objection
was made will be disregarded.
[Appellant’s counsel]: And I’m required to move for a
mistrial.
The Court: Denied.
To preserve error for appellate review, the record must show an objection
“stat[ing] 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.” TEX. R. APP. P.
33.1(a); see also Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012). A
party fails to preserve error when the contention urged on appeal does not match
with the specific complaint made in the trial court. Lovill v. State, 319 S.W.3d 687691–92 (Tex. Crim. App. 2009); see also Clark, 365 S.W.3d at 339 (“The point of
error on appeal must comport with the objection made at trial.”). In other words,
an objection stating one legal basis may not be used to support a different legal
theory on appeal. See Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.
2004); Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995); see also Ex
parte Nelson, No. 01-19-00325-CR, 2019 WL 6315197, at *3 (Tex. App.—
Houston [1st Dist.] Nov. 26, 2019, pet. ref’d) (mem. op., not designated for
publication) (“[I]ssues on appeal must track the arguments made in the trial
151
court.”); Wright v. State, 154 S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet.
ref’d) (“Where a trial objection does not comport with the issue raised on appeal,
the appellant has preserved nothing for review.”).
On appeal, appellant argues that the trial court erred in denying his motion
for mistrial after Detective Hawkins testified that appellant “intentionally cause[d]
the death of [the complainant] by causing blunt trauma to her head” because
Hawkins was prohibited from expressing an opinion during his testimony “about
[the] guilt or innocence of” appellant. See Boyde v. State, 513 S.W.2d 588, 590
(Tex. Crim. App. 1974). But at trial, appellant did not object to Hawkins’s
testimony because it constituted an improper opinion by a lay witness. See TEX. R.
EVID. 701. Instead, appellant objected that Hawkins’s testimony “call[ed] for
speculation” and “invade[d] the province of the jury.”75 See Coggins v. State, No.
04-17-00532-CR, 2018 WL 5927980, at *3 (Tex. App.—San Antonio Nov. 14,
2018, pet. ref’d) (mem. op., not designated for publication) (explaining difference
between speculation objection and objection for improper lay witness opinion);
Liller v. State, No. 08-15-00125-CR, 2018 WL 1959679, at *3–4 (Tex. App.—El
Paso Apr. 26, 2018, pet. ref’d) (not designated for publication) (holding defendant
75
We note that appellant’s objection that Detective Hawkins’s testimony “invade[d]
the province of the jury” is no longer a valid objection under Texas law following
the adoption of Texas Rule of Evidence 704. See Ortiz v. State, 834 S.W.2d 343,
348 (Tex. Crim. App. 1992), superseded by statute on other grounds as stated in
Ellison v. State, 201 S.W.3d 714, 717 (Tex. Crim. App. 2006); Mock v. State, 848
S.W.2d 215, 225 (Tex. App.—El Paso 1992, pet. ref’d).
152
failed to preserve complaint testimony improper under Texas Evidence Rule 701
when only raised speculation objection at trial); Burks v. State, No.
05-13-00852-CR, 2014 WL 5141663, at *5 (Tex. App.—Dallas Oct. 14, 2014, no
pet.) (mem. op., not designated for publication) (defendant did not preserve his
complaint trial court erred in admitting improper lay witness opinion, where only
made speculation objection in trial court); Hurst v. State, 406 S.W.3d 617, 621–23
(Tex. App.—Eastland 2013, no pet.) (explaining “province of the jury” objection
“is too imprecise to preserve error” and noting such objection did not preserve
error for appellate complaint under Texas Rule of Evidence 701 (internal
quotations omitted)); Contreras v. State, No. 12-10-00045-CR, 2011 WL 3273966,
at *1–4 (Tex. App.—Tyler July 29, 2011, pet. ref’d) (mem. op., not designated for
publication) (defendant’s complaint on appeal that trial court erred in allowing
impermissible testimony on ultimate issue of guilt not preserved by
invading-province-of-jury objection at trial); Hawkins v. State, No.
08-07-00180-CR, 2009 WL 783257, at *2 (Tex. App.—El Paso Mar. 26, 2009, no
pet.) (not designated for publication) (defendant’s invading-province-of-jury
objection at trial did not preserve appellate complaint under Texas Rule of
Evidence 701); see also TEX. R. EVID. 602, 701.
“Where a trial objection does not comport with the issue raised on appeal,
[an] appellant . . . preserve[s] nothing for [our] review.” Wright, 154 S.W.3d at
153
241; see also Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009)
(appellate court should not address merits of issue not preserved for appeal).
Because appellant’s complaint on appeal does not match the specific objections he
made in the trial court in response to the complained-of portion of Detective
Hawkins’s testimony, we hold that appellant has not preserved his complaint that
the trial court erred in denying his motion for mistrial.
Motion for New Trial
In his fourteenth issue, appellant argues that the trial court erred in denying
his motion for new trial because “of the evidence presented.” In his fifteenth issue,
appellant argues that the trial court erred in failing to consider “evidence or
arguments presented in writing in accordance with the trial court’s instructions”
when ruling on his motion for new trial because such “evidence and pleadings
were timely delivered.”
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. McQuarrie v. State, 380 S.W.3d 145, 150 (Tex. Crim. App. 2012). We
view the evidence in the light most favorable to the trial court’s ruling and uphold
it if it is within the zone of reasonable disagreement. Webb v. State, 232 S.W.3d
109, 112 (Tex. Crim. App. 2007). We do not substitute our judgment for that of
the trial court; rather we decide whether the trial court’s decision was arbitrary or
154
unreasonable. Webb, 232 S.W.3d at 112; Biagas v. State, 177 S.W.3d 161, 170
(Tex. App.—Houston [1st Dist.] 2005, pet. ref’d).
Appellant’s argument in his briefing related to his fourteenth and fifteenth
issues is difficult to discern.76 Yet, Texas Rule of Appellate Procedure 38.1
requires an appellant’s brief to “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities.” TEX. R. APP. P.
38.1(i). An appellant waives an issue when his briefing does not adhere with rule
38.1’s clarity requirement. See Aybar v. State, Nos. 12-09-00320-CR,
12-09-00321-CR, 2010 WL 3158583, at *1 (Tex. App.—Tyler Aug. 11, 2010, no
pet.) (mem. op., not designated for publication); Muniz v. State, Nos.
12-07-00363-CR to 12-07-00365-CR, 2009 WL 1492838, at *4 (Tex. App.—Tyler
May 29, 2009, no pet.) (mem. op., not designated for publication) (appellant
waives issue when he “fail[s] to make a[] cogent argument”); cf. Lara v. State, No.
04-14-00553-CR, 2015 WL 9487578, at *4 (Tex. App.—San Antonio Dec. 30,
76
The State argues that appellant waived his motion-for-new-trial issues because
they are multifarious. A multifarious issue is one that embraces more than one
specific ground. Stults v. State, 23 S.W.3d 198, 205 (Tex. App.—Houston [14th
Dist.] 2000, pet. ref’d); see also Prihoda v. State, 352 S.W.3d 796, 801 (Tex.
App.—San Antonio 2011, pet. ref’d) (defendant’s complaint was multifarious
“because it [was] based on more than one legal theory and raise[d] more than one
specific complaint”). We have discretion to “refuse to review a multifarious issue
or we may elect to consider the issue if we are able to determine, with reasonable
certainty, the alleged error about which the complaint is made.” Prihoda, 352
S.W.3d at 801; see also Davis v. State, 329 S.W.3d 798, 803 (Tex. Crim. App.
2010).
155
2015, no pet.) (mem. op., not designated for publication) (holding defendant
waived ineffective-assistance-of-counsel complaint where his argument in brief
was difficult to discern). To the extent we can discern appellant’s arguments
related to the trial court’s denial of his motion for new trial, we will address them
below. Cf. Wilson v. State, No. 04-15-00471-CR, 2016 WL 4124068, at *1 (Tex.
App.—San Antonio Aug. 3, 2016, pet. ref’d) (mem. op., not designated for
publication) (addressing portion of defendant’s complaint that appellate court
could discern from his briefing).
Appellant, in his briefing, appears to complain about the trial court’s failure
to consider Defense Exhibit 7, an audio recording of an interview of former
Brazoria County district clerk Rhonda Barchak, in ruling on appellant’s motion for
new trial. At the hearing on appellant’s motion for new trial, Barchak testified that
she previously was the district clerk for Brazoria County. And she previously gave
a statement to a Texas Ranger. Barchak asserted her Fifth Amendment privilege
against self-incrimination and refused to answer any further questions at the
new-trial hearing. See U.S. CONST. amend. V; Chapman v. State, 115 S.W.3d 1, 5
(Tex. Crim. App. 2003) (“[E]very person has the right to avoid self-incrimination
by exercising the privilege provided him by the Fifth Amendment . . . . He may
choose to remain silent rather than to respond to questions when the answers to
those questions would tend to incriminate him.” (internal footnote omitted)).
156
On appeal, appellant asserts that Defense Exhibit 7, the audio recording of
Barchak’s interview with a Texas Ranger, was admissible under Texas Rule of
Evidence 803(24) as “a statement against interest.” See TEX. R. EVID. 803(24);
Walter v. State, 267 S.W.3d 883, 889–90 (Tex. Crim. App. 2008) (explaining
generally “the hearsay rule excludes any out-of-court statement offered to prove
the truth of the matter asserted,” but exception to hearsay rule allows admissions of
statements made against declarant’s interest). But appellant does not adequately
brief his complaint about the trial court’s failure to consider Defense Exhibit 7
when ruling on appellant’s motion for new trial.
As previously noted, 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.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on
appeal if he does not adequately brief that issue by not providing supporting
arguments, substantive analysis, and appropriate citations to authorities and to the
record. See id.; Lucio, 351 S.W.3d at 896–97; Busby, 253 S.W.3d at 673; Chaves,
630 S.W.3d at 555, 557–58. Here, appellant has not provided a clear and concise
argument, substantive analysis, or citation to appropriate authority to support his
complaint that the trial court erred when it did not consider Defense Exhibit 7
157
when ruling on appellant’s motion for new trial.77 See TEX. R. APP. P. 38.1(i); see
also Dowling v. State, 608 S.W.3d 896, 901–02 (Tex. App.—Houston [14th Dist.]
2020, no pet.) (appellant who does not provide citation to appropriate authorities to
support his argument waives issue); Garcia v. State, No. 13-08-00740-CR, 2010
WL 4901389, at *5 (Tex. App.—Corpus Christi–Edinburg Nov. 30, 2010, no pet.)
(mem. op., not designated for publication) (appellant’s failure to provide clear and
concise argument with citation to appropriate authority to support his contention
waived issue).
As the Texas Court of Criminal Appeals has emphasized, 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, 509
S.W.3d at 342–43; Busby, 253 S.W.3d at 673; see also Wyatt, 23 S.W.3d at 23 n.5
77
For instance, appellant wholly fails to address in his briefing whether the
declarant, Barchak, realized that her statement during her interview with the Texas
Ranger subjected her to criminal liability at the time she made her statement—a
necessary part of the analysis of whether Defense Exhibit 7 was admissible as a
statement against interest. See TEX. R. APP. P. 38.1(i); Walter v. State, 267
S.W.3d 883, 890–91 (Tex. Crim. App. 2008) (for statement to be admissible under
Texas Rule of Evidence 803(24) it must be established that statement, when
considering all circumstances, subjected declarant to criminal liability, declarant
realized that when she made statement, and sufficient corroborating circumstances
clearly indicated truthfulness of statement); see also Wyatt v. State, 23 S.W.3d 18,
23 n.5 (Tex. Crim. App. 2000) (“We will not make appellant’s arguments for
him . . . .”); Alvarado, 912 S.W.2d at 210 (where appellant’s point of error
inadequately briefed, appellant “presents nothing for our review”); Lawton v.
State, 913 S.W.2d 542, 558 (Tex. Crim. App. 1995) (failure to adequately brief
issue, either by failing to specifically argue and analyze one’s position or provide
authorities and record citations, waives any error on appeal), overruled on other
grounds by Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998).
158
(“We will not make appellant’s arguments for him . . . .”). A brief that does not
comply with Texas Rule of Appellate Procedure 38.1 presents nothing for an
appellate court to review. See Alvarado, 912 S.W.2d at 210.
Further, we note that appellant, to the extent that he appears to assert in his
briefing, that the trial court erred in failing to consider “material disclosed during
the new trial hearing,” he does so relying on a docket sheet entry from October 20,
2021—five days after the hearing on appellant’s motion for new trial and a day
after the trial court signed its order denying appellant’s motion for new trial. That
docket sheet entry states: “All exhibits requested to be considered after evidence
was closed were not considered since opposing counsel had no opportunity to be
heard.” It is unclear how the docket sheet entry supports appellant’s assertion that
the trial court erred in failing to consider “material disclosed during the new trial
hearing.” In any event, we do not consider it. Docket sheet entries are not part of
the record because they are inherently unreliable and lack the formality of orders
and judgments. State v. Shaw, 4 S.W.3d 875, 878 (Tex. App.—Dallas 1999, no
pet.); see also Sellers v. State, No. 01-12-00163-CR, 2013 WL 3868167, at *3
(Tex. App.—Houston [1st Dist.] July 23, 2013, no pet.) (mem. op., not designated
for publication) (recitations on docket sheet are not evidence).
159
Appellant cites nothing in the actual record to support his assertion. Thus,
we hold that appellant has not shown that the trial court failed to consider certain
unidentified “material disclosed during the new trial hearing.”
Finally, to the extent that appellant has attempted to raise any other
complaints in his fourteenth and fifteenth issues related to the trial court’s denial of
his motion for new trial, we hold that they are waived due to inadequate briefing.
See TEX. R. APP. P. 38.1; Torres v. State, 979 S.W.2d 668, 675–76 (Tex. App.—
San Antonio 1998, no pet.) (where appellant’s argument was confusing and
appellate court could not “discern what contention [a]ppellant [was] making,”
nothing was presented to court for review); see also Kennedy v. Staples, 336
S.W.3d 745, 754 (Tex. App.—Texarkana 2011, no pet.) (where appellant’s
complaints lacked coherence, declining to address any further arguments that
appellate court could not clearly glean from appellant’s briefing).
Abatement
In his sixteenth issue, appellant argues that this Court should abate this
appeal and remand the case to the trial court “to consider all of the evidence
discovered during the October 15, 2021 [motion-for-new-trial] hearing” because
the trial court, in ruling on appellant’s motion for new trial, “refused to consider
the evidence or information produced on October 15, 2021.”
160
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) (emphasis added). An
appellant waives an issue on appeal if he does not adequately brief that issue by not
providing supporting arguments, substantive analysis, and appropriate citations to
authorities and to the record. See id.; Lucio, 351 S.W.3d at 896–97; Busby, 253
S.W.3d at 673; Chaves, 630 S.W.3d at 555, 557–58. 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, 509 S.W.3d at342–43; Busby, 253 S.W.3d at 673; see also Wyatt, 23 S.W.3d at 23 n.5 (“We will
not make appellant’s arguments for him . . . .”). A brief that does not comply with
Texas Rule of Appellate Procedure 38.1 presents nothing for an appellate court to
review. See Alvarado, 912 S.W.2d at 210.
In his briefing, appellant provides no support for his assertion that this Court
should abate this appeal, nor has he provided this Court with any meaningful
analysis to support his request.78 See Jones v. State, No. 11-19-00251-CR, 2021
WL 3413794, at *3 (Tex. App.—Eastland Aug. 5, 2021, no pet.) (mem. op., not
designated for publication) (holding defendant, who failed to provide support for
78
To the extent that appellant, in his reply brief, attempts to direct this Court to
purportedly relevant authority, we note that the authority cited does not support his
abatement request. See TEX. R. APP. P. 38.1(i) (requiring citation to appropriate
authority).
161
his appellate complaint, waived his complaint for appellate review); Coffey v.
State, Nos. 10-17-00057-CR, 10-17-00058-CR, 2019 WL 2557499, at *3 (Tex.
App.—Waco June 19, 2019, no pet.) (mem. op., not designated for publication)
(defendant who provided no support for complaint waived issue on appeal).
Further, we previously denied appellant’s request for abatement on February
1, 2022. Appellant provides no argument or authority to support our
reconsideration of his request for abatement. Thus, we hold that appellant has
waived, due to inadequate briefing, his argument that this Court should abate this
appeal and remand the case to the trial court “to consider all of the evidence
discovered during the October 15, 2021 [motion-for-new-trial] hearing.” See TEX.
R. APP. P. 38.1(i); Osuna v. State, No. 14-15-00871-CR, 2016 WL 5853290, at *3
(Tex. App.—Houston [14th Dist.] Oct. 6, 2016, no pet.) (mem. op., not designated
for publication) (overruling defendant’s abatement request where defendant cited
no authority requiring abatement).
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Conclusion
We affirm the judgment of the trial court.
Julie Countiss
Justice
Panel consists of Justices Landau, Countiss, and Guerra.
Do not publish. TEX. R. APP. P. 47.2(b).
163