Sherrick Washington v. State

Affirmed and Opinion filed December 20, 2018.
In the
Fourteenth Court of Appeals
NO. 14-17-00595-CR
SHERRICK WASHINGTON, Appellant
v.
THE STATE OF TEXAS, Appellee
On Appeal from the 208th District Court
Harris County, Texas
Trial Court Cause No. 1540170
OPINION
Appellant Sherrick Washington challenges his conviction for the capital
murder of his girlfriend’s five-year-old son. See Tex. Penal Code §§ 19.02(b)(1),
19.03(a)(8) (West 2017). Appellant raises seven issues on appeal. He argues the
evidence is legally insufficient to support that he intentionally or knowingly caused
the death of Amarie; the trial court abused its discretion by permitting the
introduction of statements appellant’s girlfriend made to police; the admission of
such evidence violated appellant’s rights under the Confrontation Clause; the trial
court abused its discretion by permitting the introduction of appellant’s girlfriend’s
statement, “Don’t hurt him,” during a phone call with appellant; the trial court denied
appellant his constitutional right to present a complete defense by excluding
evidence that his girlfriend was an alternate perpetrator; the trial court abused its
discretion by not permitting certain testimony by appellant’s mother; and the trial
court erred by instructing the jury on the law of parties because there is insufficient
evidence that appellant was guilty as the principal or as a party. We affirm.
I. BACKGROUND
Appellant and his girlfriend Brandi Howard broke up around April 18, 2015.
Howard had a five-year-old son, complainant Amarie Daniels. In a text message
sent on April 22, 2015, appellant told Howard that he broke up with her because
“stayin there wit ya kid is dangerous for me.” Approximately a week and a half
later, appellant and Howard were back together; and appellant was staying with
Howard and Amarie at their new apartment.
According to Howard, about 3:00 p.m. on the afternoon of Saturday, May 2,
2015, Amarie went outside to play. At approximately 3:23 p.m., Howard received
a phone call from her ex-husband, Donnell Hunter. During the call, a male voice
could be heard yelling in the background as Hunter stated, “Man, I don’t care about
you.” Howard told Hunter to stop calling her and that he was “making things look
bad on [her] part.” According to appellant, he was aware of this phone call and it
did not bother him.
Appellant left Howard’s apartment to visit his father and to watch a televised
fight at a friend’s house. According to Howard, Amarie returned to the apartment
about 7:00 or 8:00 p.m. Amarie had a knot on his forehead and a bruise on his right
leg. When Howard asked him what happened, Amarie told her that he “got jumped
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by a lot of kids.” Amarie was “coherent and acting well.” He ate dinner around
10:00 p.m. and went to bed.
Appellant returned to the apartment about 1:00 a.m. on May 3, 2015. About
3:37 a.m., there was a phone call between appellant and Howard. According to cell
phone data, at this time appellant was at or in the vicinity of the apartment. In this
call, Howard told appellant, “Hey, don’t hurt him,” and appellant responded, “All
right. He’s all right.” Appellant was awakened by Amarie’s coughing between 9:30
and 10:00 a.m. Amarie had wet the bed and was unresponsive. Appellant placed
Amarie in the shower to try to wake him up.
At approximately 11:14 a.m., Howard called 9-1-1. Howard told the operator
that Amarie was not responsive after she and appellant tried to wake him.
Paramedics arrived. Appellant and Howard informed them that Amarie had come
home with injuries the previous day after being in a fight. Paramedics noted what
appeared to be “adult hand print bruising” on Amarie’s back. Paramedics took
Amarie to a nearby hospital. From there, Amarie was life-flighted to Children’s
Memorial Hermann Hospital.
In addition to telling medical personnel about how Amarie was “jumped” by
some kids, appellant and Howard told police that Amarie may have fallen down the
stairs. Howard called appellant from the hospital at about 1:18 p.m. Howard told
appellant she would go “f**king crazy” if Amarie died and that “[t]hey gonna have
to find out who did this—to Amarie.” Appellant told Howard to “just chill” and not
“talk” to the authorities. He also acknowledged they should have brought Amarie
to the hospital sooner. At 11:27 p.m., Amarie was pronounced dead.
During a search of the apartment, Deputy S. Simpson, a crime scene
investigator with the Harris County Sheriff’s Office (HCSO), collected a ripped
men’s XL t-shirt that was found to contain appellant’s DNA and Amarie’s blood.
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Amarie’s DNA was located on a scuffed-up wall of the apartment. HCSO also
collected appellant’s belt, which contained appellant’s DNA.
Police twice interviewed appellant. Appellant denied that he ever whipped,
struck, or spanked Amarie. Appellant instead claimed that he made Amarie “work
out for his whoopings,” such as by doing push-ups. During their second interview
with appellant, police told him Howard provided a detailed story of what happened
that implicated appellant.
After appellant was arrested for capital murder, he called his father from jail.
Appellant stated: “It ain’t no bulls**t case,” and “This ain’t no bulls**t time.” He
informed his father that “[t]he boy done caught a butt whoopin’.” Appellant told his
father that Howard “went up there and told [police] something else” and that he
could not “knock her.” Appellant also called his mother from jail. Appellant told
his mother that he should have listened to her and should not have “went over there.”
Appellant admitted to his mother that “[t]he boy got a whoopin’ the night before,”
appellant was the one who “gave [Amarie] a whooping,” and appellant “should have
never whooped [Amarie].”
Appellant was indicted and tried for capital murder. At trial, medical evidence
showed Amarie suffered severe external and internal injuries that were inconsistent
with having been sustained in a playground fight with other children or in an
accidental fall. Amarie had three pelvic fractures and two fractures at the base of
his skull, which caused bleeding in his brain and swelling all along his spinal cord.
Amarie had multiple cuts and several-inch-long contusions on his head; linear and
striated bruises on his legs and buttocks; and bruises on his ribs, hip, torso, and shin.
The beating involved multiple hard blows that occurred with high speed and extreme
force. The beating involved Amarie being struck by hand or with or against a blunt
object. The force was strong enough to crush his skin in various places. Amarie
4
would not have been able to walk home and would have lost consciousness. It would
have been obvious that Amarie required immediate medical assistance. According
to Sergeant D. Wolfford, a detective and the supervisor of HCSO’s child abuse unit,
appellant’s belt was consistent with the striated injuries on Amarie’s legs and
buttocks. Child abuse pediatrician Dr. R. Giradet opined that Amarie “was severely
beaten, and the beat[ing] was responsible for his death.” Harris County assistant
medical examiner Dr. D. Phatak testified that Amarie’s cause of death was multiple
blunt force injuries.
Appellant objected to the inclusion of the law-of-parties instruction in the jury
charge. The trial court overruled this objection. The jury returned a verdict of guilty
on the charge of capital murder. Because the State did not seek the death penalty,
the trial court sentenced appellant to life imprisonment without the possibility of
parole. See Tex. Penal Code § 12.31(a)(2) (West 2017). Appellant timely appealed.
II. ANALYSIS
A. Legal sufficiency of the evidence
When reviewing the sufficiency of the evidence to support the jury’s guilty
verdict in a criminal case, we consider 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, 319 (1979); see Brooks v. State, 323 S.W.3d 893, 912 (Tex.
Crim. App. 2010). Under this standard, “all of the evidence is to be considered in
the light most favorable to the prosecution.” Jackson, 443 U.S. at 319 (emphasis in
orig.). Courts of appeals consider the combined and cumulative force of all evidence
in the record, whether admissible or inadmissible, to make this determination.
Johnson v. State, 509 S.W.3d 320, 322 (Tex. Crim. App. 2017); Russeau v. State,
171 S.W.3d 871, 879 n.2 (Tex. Crim. App. 2005); see Jackson, 443 U.S. at 319
(1979). “Although we consider everything presented at trial, we do not reevaluate
5
the weight and credibility of the evidence or substitute our judgment for that of the
fact finder.” Price v. State, 456 S.W.3d 342, 347 (Tex. App.—Houston [14th Dist.]
2015, pet. ref’d). We “only ensure the jury reached a rational decision.” Kolb v.
State, 523 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d).
“It is not necessary that the evidence directly prove defendant’s guilt;
circumstantial evidence is as probative as direct evidence in establishing the guilt of
the actor, and circumstantial evidence alone may be enough to establish guilt.”
Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013); see Ramsey v.
State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015). The jury is permitted “to draw
multiple reasonable inferences as long as each inference is supported by the evidence
presented at trial.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). “The
jury is the sole judge of credibility and weight to be attached to the testimony of
witnesses.” Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing
Jackson, 443 U.S. at 319). We defer to the jury’s responsibility to fairly resolve or
reconcile conflicts in the evidence, and we draw all reasonable inferences from the
evidence in favor of the verdict. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim.
App. 2010).
A person commits murder when he “intentionally or knowingly causes the
death of an individual.” Tex. Penal Code § 19.02(b)(1). A person commits capital
murder if he murders an individual under ten years of age. Id. § 19.03(a)(8). Identity
of the guilty party may be proven by direct evidence, circumstantial evidence, and
reasonable inferences made from available evidence. Gardner v. State, 306 S.W.3d
274, 285 (Tex. Crim. App. 2009). Intent may be determined from a defendant’s
words, acts, and conduct, and “is a matter of fact, to be determined from all of the
circumstances.” Smith v. State, 965 S.W.2d 509, 518 (Tex. Crim. App. 1998).
Appellant contends that the evidence is not strong enough to support logical
6
inferences of his guilt. We disagree. Based on our review of the record, properly
keeping these deferential standards in mind, we conclude that the evidence is legally
sufficient to support the jury’s verdict. See Jackson, 443 U.S. at 319, 326; Temple,
390 S.W.3d at 360, 363.
Appellant discounts the medical evidence for not informing the jury
“definitively, how Amarie received such horrible injuries.” But such “pinpoint”
precision is not required so long as the evidence reasonably narrows the means and
manner and potential time frame of injury. See Martin v. State, 246 S.W.3d 246,
261–63 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (evidence was legally
sufficient to support capital murder of child despite lack of exact time and manner
of blunt force trauma).
Giradet and Phatak opined that Amarie’s injuries resulted from multiple, hard,
high-speed and high-energy blunt force traumas dealt by a hand or an object or both.
“[T]here was an impact to the back of the head sufficient enough to fracture the back
of the skull and to have that fracture be accompanied by a separate fracture within
the skull.” The pelvic fractures sustained by Amarie are not common outside of a
major car accident or a fall from a great height. Amarie was “severely beaten.”
Amarie’s injuries were acute and incapacitated him.
Amarie was responsive and mobile when he went to bed after 10:00 p.m. on
May 2. Appellant returned to the apartment about 1:00 a.m. The 3:37 a.m. phone
call indicates that appellant had the opportunity to be alone with Amarie. See
Temple, 390 S.W.3d at 360 (opportunity is circumstance indicative of guilt). By
9:30 or 10:00 a.m., Amarie had wet himself, had difficulty breathing, and was
unresponsive. Appellant admitted to giving Amarie a “whoopin’ the night before.”
The jury reasonably could have inferred from the evidence that appellant gave
Amarie much more than a “simple spanking” sometime in the early morning hours
7
of May 3. See Lindsey v. State, 501 S.W.2d 647, 648–49 (Tex. Crim. App. 1973).
Appellant argues that medical evidence of the presence of chronic cells
showed Amarie could have received some of his injuries up to 48 hours prior to the
autopsy.1 However, Amarie’s autopsy report stated that the cranial and pelvic
injuries occurred “at or around the time of death.” Both Giradet and Phatak testified
that the skull and pelvic fractures were recent, acute injuries. Forensic anthropologic
analysis also revealed there was no evidence of healing to Amarie’s skull and pelvic
fractures. The jury reasonably could have inferred that the blunt force traumas
causing these severe injuries occurred in the early morning the day Amarie died.
The jury also reasonably could have concluded that appellant intended to
injure Amarie when he was “whooping” him. Appellant was fit and muscular,
weighed between 185 to 195 pounds, and wore a men’s size XL, while Amarie wore
a toddler boys’ size 4T. See Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.
1995) (intent may be inferred from extent of injuries and relative size and strength
of parties); Lindsey, 501 S.W.2d at 648; Herrera v. State, 367 S.W.3d 762, 771 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (“The severity and number of J.H.’s
injuries also support a finding that appellant caused them intentionally or knowingly.
Intent can be inferred from the extent of the injuries to the victim, the method used
to produce the injuries, and the relative size and strength of the parties.”).
Amarie’s blood was found on appellant’s t-shirt that was “ripped along the
upper right shoulder area.” Although appellant does not dispute that this evidence
is incriminating, he protests the State did not “exclude all other reasonable
explanations” for the presence of blood other than appellant killed Amarie. The
State, however, was not required to do so. See Ramsey, 473 S.W.3d at 808; Wise v.
1
The autopsy commenced at 2:15 p.m. on May 4, 2015, and was concluded on May 5,
2015.
8
State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (“For the evidence to be
sufficient, the State need not disprove all reasonable alternative hypotheses that are
inconsistent with the defendant’s guilt.”). Appellant indicated that he was wearing
this t-shirt while he was attending to Amarie; however, appellant changed out of it
before paramedics and police arrived. See Guevara v. State, 152 S.W.3d 45, 50
(Tex. Crim. App. 2004) (attempts to conceal incriminating evidence are probative
of wrongful conduct and are circumstances of guilt).
Amarie’s DNA was identified in a scuff mark along the wall of the master
bedroom. The mark contained “small fibers.” Appellant faults the lack of testimony
as to how or when Amarie left his DNA on the wall. However, the jury reasonably
could have inferred from the evidence of the multiple, extremely forceful blows
inflicted upon various parts of Amarie’s body, including his head, that at some point
during the course of the beating appellant threw Amarie into, or Amarie’s body made
contact with, the wall.
Appellant also complains of the lack of a forensic comparison between his
belt and Amarie’s bruising. However, both Giradet and Phatak testified that a belt
could have been used to inflict the “pattern” injury on Amarie’s legs and buttocks.
Moreover, the jury was free to credit Wolfford’s testimony as an experienced child
abuse investigator that appellant’s belt was consistent with the linear abrasions found
on Amarie. See Temple, 390 S.W.3d at 360.
Appellant and Howard told medical personnel and police that Amarie
sustained his injuries in a fight with other children or fell down the stairs. These
stories, however, were implausible, given the extreme severity of the child’s injuries.
See Guevara, 152 S.W.3d at 50 (lies and implausible explanations are probative of
wrongful conduct and are circumstances of guilt). Wolfford explained the stair story
was a classic sign of child abuse: “Often adults will try to explain injuries to a child
9
that are often caused by the hands of an adult.” Wolfford also testified that key parts
of appellant’s and Howard’s statements were identical and appeared to be
“rehearsed.”
Additionally, it would have been obvious that Amarie needed immediate
medical attention due to his serious injuries. However, appellant and Howard
delayed calling 9-1-1 for almost two hours. See Martin, 246 S.W.3d at 262 (delay
in seeking medical care supported consciousness of guilt). Wolfford testified that
appellant’s attempt to revive Amarie in the shower in the morning was particularly
significant “[b]ecause it is a delay of calling law enforcement or medical, emergency
medical services. It is a last ditch effort to avoid that.” Appellant acknowledged in
the phone call with Howard at 1:18 p.m. on May 3 that Amarie should have been
taken to the hospital sooner. The jury reasonably could have concluded that
appellant was attempting to hide his abuse of Amarie.
Also, appellant engaged in “unusual” and “odd behavior” after Amarie was
taken to the hospital. While the police at the scene were waiting for homicide
investigators to arrive, appellant’s “only concern” was not going to the hospital or
what happened to Amarie. Instead, appellant insisted that he “go wash up” and
straightened up the living room. Appellant kept touching items in the apartment
after police repeatedly asked him to stop. The jury reasonably could have relied on
appellant’s strange behavior after the crime to infer his guilt. See id.; Hinojosa v.
State, 4 S.W.3d 240, 253 (Tex. Crim. App. 1999).
In the 1:18 p.m. phone call on May 3, appellant cautioned Howard: “Listen,
just let them do their job. All we can do is really just let them do their job right now.
Please. Don’t talk, you know, you—just chill. ‘Cause we can’t do anything about
it right now. Just let them do their job.” Appellant’s attempt to silence Howard
reasonably supported his consciousness of guilt. See Temple, 390 S.W.3d at 362
10
(considering evidence that appellant asked witness to “keep his mouth shut”); Wilson
v. State, 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (“Such an attempt to tamper
with a witness is evidence of ‘consciousness of guilt.’”).
Cell phone data confirmed that appellant returned to the apartment about
1:00 a.m. and remained in the vicinity the rest of the night. Appellant told police
that he had been drinking, passed out, was asleep all night, and did not see Amarie
until the morning. However, the 3:37 a.m. phone call between appellant and Howard
tended to show that appellant was awake and could have been alone with Amarie at
that time. Again, appellant lied to police. See Guevara, 152 S.W.3d at 50. And, the
jury reasonably could have concluded that there was opportunity for appellant to
commit the crime. See Temple, 390 S.W.3d at 360.
Appellant denied to police that he ever whipped, spanked, or struck Amarie.
However, appellant was involved in the physical discipline of Amarie, subjecting
him to push-ups and boxing classes to “toughen” him up. Moreover, appellant lied
to police about never whipping Amarie. See Guevara, 152 S.W.3d at 50. Appellant
confessed in phone calls from jail to both his father and mother that appellant had
inflicted a “butt-whoopin’” on Amarie the night before he died. See Lindsey, 501
S.W.2d at 648–49 (finding evidence sufficient to show appellant inflicted injuries
resulting in death considering “admission that he whipped child” and medical
testimony that injuries could not have been accidental). Appellant also admitted to
his mother that he “should never have whooped [Amarie].” Appellant knew that he
had “f**ked up” and was facing significant incarceration time because it was not a
“bulls**t case.”
Appellant acknowledges the “incriminating” nature of the jail calls appellant
made to his father and mother but asserts that “it is just as reasonable for his
comments to mean” that he only had spanked Amarie, appellant realized the
11
seriousness of the charges against him, and Howard had made statements against
appellant “to make a deal for herself.” The jury, however, could have resolved any
conflicting inferences in favor of appellant’s guilt; and we must presume that it did.
See Jackson, 443 U.S. at 319; Temple, 390 S.W.3d at 360.
Further, appellant expressed concern via his text message to Howard before
they got back together that it was “dangerous” for him to be around Amarie. There
was evidence that appellant was angered when Howard spoke to her ex-husband
Hunter on the afternoon of May 2. There also was evidence that in the 3:37 a.m.
phone call Howard asked appellant not to hurt Amarie. The jury reasonably could
have concluded that appellant had issues controlling his anger and had unleashed his
anger on Amarie. See Temple, 390 S.W.3d at 360 (motive is circumstance indicative
of guilt); Guevara, 152 S.W.3d at 50 (“Motive is a significant circumstance
indicating guilt.”).
Appellant asserts that the April 22, 2015, text message was mistakenly
identified by Wolfford as being sent the same week of the murder instead of over a
week prior. However, the State identified April 22, 2015, as the text’s “sent date”
when Wolfford read the text during his testimony. And, appellant does not explain
how a few days’ mistake would preclude the jury from rationally inferring appellant
still had concerns that it was “dangerous” for him to be with Howard because of
Amarie. Appellant complains the text lacked context but does not indicate what
additional context was available or how it would have explained his statement.
Appellant argues Wolfford’s interpretation of the 3:37 a.m. phone call—that
Howard was worried for Amarie and begged appellant not to hurt him—“was a
guess” not based on “personal knowledge.” Appellant does not provide, and we
have not located, any authority that requires any personal knowledge for Wolfford
to interpret a phone call as an investigator. Placed in context, according to appellant,
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he had been involved in the physical discipline of Amarie, and Howard “wanted
[appellant] to whoop” Amarie. Moreover, appellant already had informed Howard
that staying with her was “dangerous” because of Amarie. Appellant also points out
that Howard is not frantic or crying in the call. That Howard was not overly
emotional does not preclude the jury from reasonably inferring she had concerns
about appellant’s treatment of Amarie.
Appellant also argues a rational person could not conclude that the “him” in
Howard’s “Don’t hurt him” statement was Amarie. Appellant contends that the
“him” could not be Amarie if appellant was not at the apartment. However, evidence
places Amarie in the apartment and appellant in the vicinity of the apartment at
3:37 a.m. Appellant argues that the “him” Howard referenced also could be her ex-
husband. Again, the State did not have to exclude all other possibilities. See
Ramsey, 473 S.W.3d at 808; Wise, 364 S.W.3d at 903.
We conclude that the evidence, viewed in the light most favorable to the
verdict, is legally sufficient to permit a rational jury to convict appellant of the capital
murder of Amarie. See, e.g., Martin, 246 S.W.3d at 263. We overrule appellant’s
first issue.
B. Howard’s statements to police concerning appellant
In his second and third issues, appellant challenges the trial court’s decision
to allow the State to introduce certain statements regarding what Howard said to
police about appellant’s involvement in the offense because, appellant claims, the
references constituted inadmissible hearsay, were unduly prejudicial, and violated
his rights under the Confrontation Clause. Appellant challenges these four
statements:
 That’s not what the evidence and that’s not what Brandi said.
She gives a detailed story of what happened.
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 Brandi told us a story today okay. I sat here and I almost broke
down in tears because of the story that I heard for her, for you,
for Amarie, mainly. That’s why I broke down.
 We know what happened, happened. In other words, what I’m
saying is Brandi told us what happened. I believe Brandi.
 I’m going to tell you this, Brandi did tell on you, plain and
simple. Can’t get no plainer than that.
Appellant filed a pretrial motion to exclude these statements from the videotaped
recording of his second interview because they were hearsay, their prejudicial effect
far outweighed the probative value, and their admission would violate his rights
under the confrontation clause of the Sixth Amendment of the United States
Constitution. The trial court held a hearing during trial outside the presence of the
jury and overruled these objections.
The State responds that appellant waived error because, during Wolfford’s
testimony when the State moved to introduce the recording, appellant stated, “I have
no objections.” “[W]hen assessing the meaning of an attorney’s statement that he
or she has ‘no objection’ in regard to a matter that may have been previously
considered and ruled upon, courts should first ask whether ‘the record as a whole
plainly demonstrates that the defendant did not intend, nor did the trial court
construe, his “no objection” statement to constitute an abandonment of a claim of
error that he had earlier preserved for appeal.’” Stairhime v. State, 463 S.W.3d 902,
906 (Tex. Crim. App. 2015) (quoting Thomas v. State, 408 S.W.3d 877, 885 (Tex.
Crim. App. 2013)). If, after applying the test, it remains ambiguous whether
abandonment was intended, then we must resolve the ambiguity in favor of finding
waiver. Id.
The record is ambiguous and therefore favors waiver. See id. Although the
trial court told defense counsel that it would be willing to give a limiting instruction
14
concerning these statements, subject to the court’s approval, appellant did not
request any instruction when the statements were admitted. As a result, the
statements were admitted for all purposes. See Williams v. State, 273 S.W.3d 200,
230 (Tex. Crim. App. 2008); Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim.
App. 2001). Also, arguably, appellant strategically abandoned his objections to the
statements in favor of attacking Howard’s credibility. During closing arguments,
defense counsel repeatedly referred to Howard’s “lies” and to Howard as a “liar.”
Rather than shying away from Howard’s statements to police concerning appellant’s
involvement in the offense based on the prior objections, appellant affirmatively
referenced those statements. For example, defense counsel stated:
 As they closed in on Brandi, that is when she pointed the finger
at Sherrick because she did not want to face a capital murder trial.
It was self-serving on her part.
 She lied not once, not twice, not three times; but when questioned
the fourth time by law enforcement when the walls were closing
in and her child was dead, she made up a story. She made up a
story.
 [S]he who sings the first and the loudest wins the prize . . . .
See Sharper v. State, 485 S.W.3d 612, 615–16 (Tex. App.—Texarkana 2016, no
pet.) (finding waiver of confrontation-clause error where appellant stated, “No, Your
Honor,” when asked if there were objections to redacted interview transcript, and
where in closing argument appellant strategically attacked alleged accomplice’s
motivation for giving implicating statements contained in transcript).
Even if appellant had preserved error, we would conclude that appellant was
not harmed by any confrontation-clause error.2 See Jackson v. State, 468 S.W.3d
2
We need not address whether the statements violated the hearsay rule or were unfairly
prejudicial because we presume the statements violated appellant’s right to confront adverse
witnesses. See Diamond v. State, 496 S.W.3d 124, 140 n.2 (Tex. App.—Houston [14th Dist.]
2016, pet. ref’d). “The standard for reviewing harm from a presumed error in admitting a statement
15
189, 195 & n.3 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (reaching
suppression issue despite appellant’s “no objection” statement when State offered
videotape and inventory form).
We presume for the sake of argument that these statements regarding what
Howard said to police were inadmissible because they violated appellant’s right to
confront her. A confrontation-clause violation is constitutional error that requires
reversal unless we conclude beyond a reasonable doubt that the error was harmless.
See Tex. R. App. P. 44.2(a); Davis v. State, 203 S.W.3d 845, 849 (Tex. Crim. App.
2006). In determining whether the error was harmful, a reviewing court may
consider various factors, including: (1) the importance of the hearsay evidence to the
State’s case, (2) whether the hearsay evidence was cumulative of other evidence, (3)
the presence or absence of evidence corroborating or contradicting the hearsay
testimony on material points, and (4) the overall strength of the State’s case. Davis,
203 S.W.3d at 852. We must ask whether there is a likelihood that the constitutional
error was a contributing factor in the jury’s deliberations in arriving at its verdict.
Smith v. State, 436 S.W.3d 353, 372 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d) (citing Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007)). “Put
another way, is there a reasonable possibility that the Crawford [v. Washington, 541
U.S. 36 (2004),] error, within the context of the entire trial, moved the jury from a
state of non-persuasion to one of persuasion on a particular issue?” Davis, 203
S.W.3d at 852–53.
containing hearsay is lower than the standard for reviewing harm from a presumed error in
admitting a statement that violated appellant’s right to confront adverse witnesses.” Id. (citing
cases and explaining that error in admitting hearsay is not reversible unless it affected defendant’s
substantial rights while constitutional error requires reversal unless appellate court concludes
beyond a reasonable doubt that error is harmless). Likewise, error under rule 403 is non-
constitutional and subject to a lower standard of review for harm. See Banks v. State, 494 S.W.3d
883, 895 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d).
16
The hearsay statements attributed to Howard were not overly important to the
State’s case. The trial evidence, as well as the State’s closing argument, focused
largely on appellant—his anger and jealousy over Howard; his intent to kill based
on Amarie’s injuries and appellant’s size; appellant’s “guilty” behavior in changing
his blood-stained shirt; his lie about drinking and then sleeping all night; his belt
being consistent with Amarie’s bruising; appellant’s repeated lies about never
touching Amarie; and appellant’s admissions that he “f**ked up,” it was not a
“bulls**t case,” and he gave Amarie a “butt whoopin’.” During closing argument,
the State highlighted the importance of appellant’s own “damning” statements and
“plain speak”: “Guilty people say the things that he says to his mother and his father.
Guilty people lie about basic things about what they were doing that night in the
phone conversations that they claim they didn’t have.” See Diamond v. State, 496
S.W.3d 124, 141 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (considering
State’s focus on appellant’s statement). To the extent the State brought up Howard’s
statements to police in closing argument, it was in the context of emphasizing
appellant’s own statement to his father. The State argued:
[A]nd I can’t knock Brandi; and my God, do they hide from that.
That is what kills them right there is that Sherrick Washington knows
that whatever Brandi said is the truth, and he can’t knock it.
We all know that she told the lie, the lie that he started. We know
that she was a loyal soldier for some point in time until he was separated
from her; but at the end of the day, him, himself, can’t knock Brandi
Howard for what happened. He knows he did what he did, and he can’t
knock her for it, and that is what he said to his father, and that is why
they don’t want to talk about [the State’s CD exhibit containing the jail
call between appellant and his father].
In addition, the statements reportedly made by Howard to police implicating
appellant duplicated other evidence admitted without objection at trial. See id.
Within the same interview (but not objected to by appellant), Wolfford also told
17
appellant, “And the only other witness there says that you—you did that.” Appellant
responded, “Now, saying that Brandi does—it’s impossible for Brandi to tell you
that. Now if she told you that, then I don’t know why, but that’s impossible for her
to tell you that. And that’s not the way it happened.” Later on during the interview
(again, not objected to by appellant), another officer told appellant, “I know that
you—you probably just don’t believe what they told you, you don’t believe that
Brandi said what she said . . . . At some point you’ll be able—you’ll find out exactly
what she said.” References to Howard’s statements implicating appellant also came
in during cross-examination when defense counsel himself asked Wolfford if
Howard “point[ed] the finger” at his client, and Wolfford responded that she had.
Defense counsel also asked Wolfford, “By telling you that my client is responsible
for causing the death of her child, [Howard] does not get charged with capital murder
after that interview, correct?” Wolfford responded, “She didn’t get charged after
that interview, no.” Further, that Howard implicated appellant in her interview with
police came in through appellant’s jail call with his father.
Additionally, although not evidence, during his opening statement, defense
counsel stated that Howard “concocted the story [sic] point the finger at Sherrick
Washington; and that was to cover her own tracks. We are going to put on evidence
to show you . . . that she has concocted this story and that it is a lie.” Nor, as
discussed above, did appellant sidestep Howard’s statements to police during closing
argument.
Finally, as detailed above in our discussion of legal sufficiency, the State
presented substantial evidence of appellant’s guilt, which in general tended to
corroborate the statements about Howard’s “telling” on appellant to police. See id.
Given the record before us, we conclude that any error in admitting the four
challenged statements is harmless beyond a reasonable doubt. See Davis, 203
18
S.W.3d at 856; Diamond, 496 S.W.3d at 141.
We overrule appellant’s second and third issues.
C. Howard’s “Don’t hurt him” statement
In his fourth issue, appellant challenges the trial court’s decision to allow the
portion of the 3:37 a.m. phone call between appellant and Howard in which Howard
told appellant, “Don’t hurt him,” because it constituted inadmissible hearsay and
was unduly prejudicial. Appellant contends that the State did not offer Howard’s
statement to provide context for appellant’s party admission, “All right. He’s all
right,” but rather for the sole purpose of arguing to the jury that appellant intended
to, and did, hurt Amarie.
The State first responds that appellant waived any error. As part of his motion
to exclude, appellant objected to Howard’s “Don’t hurt him” statement within the
3:37 a.m. phone call based on hearsay and undue prejudice. During trial, the trial
court held a hearing outside the presence of the jury and overruled appellant’s
objections.3 Later, when the State moved to admit the flash drive containing the
recording of this phone call, defense counsel stated, “I have no objections, judge.”
We agree with the State. The record and context here demonstrate that
appellant intended to abandon his objections to Howard’s statement, “Don’t hurt
him.” See Stairhime, 463 S.W.3d at 906. During cross-examination, defense
counsel asked Wolfford about the 3:37 a.m. phone call and expressly referenced
Howard’s “Don’t hurt him” statement. In closing argument, defense counsel
expressly referenced this particular statement by Howard and argued she
“cunningly” recorded her phone call with appellant. Defense counsel specifically
3
At the time of the hearing, appellant also objected to Howard’s “Don’t hurt him”
statement in the phone call based on the Confrontation Clause. The trial court also overruled this
objection; however, appellant does not raise and therefore has abandoned this objection on appeal.
19
asked the jury to “listen” to the phone call on the flash drive:
. . . [B]ut the state will draw your attention to this 3:36 phone call
captured on a recording by a woman who is cunning and plans and is
meticulous; and at 3:36 in a 11-second phone call Brandi Howard says,
“Don’t hurt him.” Mr. Washington says, “He is all right.”
Go back and listen to that. It is on the state’s flash drive, and
remember this and remember that with no scientific accuracy because
the cell phone tower lady said that they were not in the same house.
I will tell you what is a reasonable deduction from that phone call
if you listen to it. Mr. Washington had been out partying with his friend
and his dad having a few cocktails. It sounds to me like he is asleep,
asleep in one of the other bedrooms in the same apartment as Brandi
Howard who spent the last three hours beating her child to death and
put that baby to bed and walked away. That is what the evidence
suggests.[4]
We conclude on this record that appellant’s utterance of “no objections” to
the State’s admission of the flash drive results in waiver of his challenges to
Howard’s “Don’t hurt him” statement. See id. at 907; McCoslin v. State, 558 S.W.3d
816, 822 (Tex. App.—Houston [14th Dist.] 2018, pet. filed) (“[I]f the State offers
the subject evidence and the defendant affirmatively voices ‘no objection,’ then the
defendant will have waived any error in admission of the evidence.”); Sharper, 485
S.W.3d at 616; Harper v. State, 443 S.W.3d 496, 498–99 (Tex. App.—Texarkana
2014, pet. ref’d) (finding waiver where appellant affirmatively stated he had “no
objection” to admission of State’s cocaine evidence and where appellant’s “trial
tactic of emphasizing the relatively small amount of cocaine in the pill bottle”
4
The State discussed Howard’s “Don’t hurt him” statement in its rebuttal:
. . . [Appellant] was put on notice to not hurt the child at 3:37. This isn’t him
sleeping in another room. This isn’t her just saying stuff to say stuff. If it really
were the case, hey, don’t hurt him. The natural response is if you are not a guilty
person is, “What the hell are you talking about, lady? What do you mean don’t hurt
him? Isn’t he asleep? Isn’t he in bed? What is going on here[?]
20
supported “full relinquishment” of previous evidentiary challenge).
We overrule appellant’s fourth issue.
D. Evidence concerning Howard’s mental health
In his fifth issue, appellant argues the trial court denied him his constitutional
right to present a complete defense when it excluded evidence that Howard was an
alternate perpetrator of the offense. Specifically, appellant contends that the trial
court should have ordered the State to produce medical records concerning
Howard’s mental illness—namely post-traumatic stress disorder (PTSD) and anger
issues—so that appellant could introduce the records into evidence during trial.
Appellant relies on Holmes v. South Carolina, 547 U.S. 319 (2006).
However, the record does not indicate that appellant preserved any
constitutional issue concerning Howard’s medical records by presenting such
argument to and obtaining a ruling from the trial court. See Tex. R. App. P. 33.1(a);
Leza v. State, 351 S.W.3d 344, 360–61, 361 n.67 (Tex. Crim. App. 2011); Rodriguez
v. State, 368 S.W.3d 821, 826 (Tex. App.—Houston [14th Dist.] 2012, no pet.). Nor
in his reply brief does appellant argue that such error is immune to ordinary
principles of procedural default. See Leza, 351 S.W.3d at 361 & n.68; Rodriguez,
368 S.W.3d at 826. Therefore, we overrule this portion of appellant’s fifth issue
without reaching the merits. See Leza, 351 S.W.3d at 360–61 (finding Holmes
constitutional error not preserved under similar circumstances); Rodriguez, 368
S.W.3d at 826 (same).
In addition, appellant states that such evidence is “subject to disclosure under
Article 39.14(a) of the Texas Code of Criminal Procedure” and “[a]ccordingly, the
trial court should have ordered the State to produce it when requested by the defense
21
at trial.”5 However, appellant provides no record citations and no additional
argument or analysis on this point. We conclude that appellant waived his article-
39.14 complaint for inadequate briefing. See Tex. R. App. P. 38.1(i); Ferrer v. State,
548 S.W.3d 115, 121 (Tex. App.—Houston [14th Dist.] 2018, pet. ref’d) (finding
briefing waiver where “[a]ppellant does not elaborate on how article 39.14 was
violated or why such violation requires reversal”).
Even if appellant adequately had briefed this sub-issue, the record reflects that
the State provided access to, and defense counsel previously had “read,” whatever
of Howard’s medical records the State had. See Ferrer, 548 S.W.3d at 121 (State
provided appellant with access to recording at issue). Presuming for the sake of
argument that Howard’s mental-health medical records properly were subject to
disclosure under article 39.14(a),6 the first time appellant raised any objection on the
record that the State had not produced them was several days into trial. The trial
court specifically stated that it had not been informed of and had not been asked to
rule on any article-39.14 discovery issue before trial. The State indicated it had a
copy of the document at issue that could be redacted, and the trial court indicated it
was willing to order the State to give appellant the document if the court deemed it
relevant. However, the record does not reflect that appellant ever asked the trial
court to issue a discovery ruling, much less that the trial court did so. See id. (record
did not reflect that trial court issued order or ruling on appellant’s discovery motion).
Nor did appellant attempt to introduce any of Howard’s mental-health records. In
5
Article 39.14, entitled “Discovery,” requires that the State, upon request of the defendant,
produce evidence that “constitute[s] or contain[s] evidence material to any matter involved in the
action and that [is] in the possession, custody, or control of the state or any person under contract
with the state.” Tex. Code of Crim. Proc. art. 39.14(a) (West 2017).
6
At trial, the State argued that it had “duties under HIPAA” regarding protecting these
documents and that it had not received the Department of Public Safety (DPS) document at issue
until it was provided to the State during Howard’s trial.
22
fact, just before the close of appellant’s case, defense counsel expressly stated: “The
only outstanding legal issue there was was relative to the DPS record; and we are
not moving to introduce it, so we don’t need a ruling on that because we are not
going to get into the who has anger issues argument.” Under these circumstances,
we cannot conclude that the trial court abused its discretion regarding any discovery
determination. See McBride v. State, 838 S.W.2d 248, 250 (Tex. Crim. App. 1992)
(generally determination of discoverability under article 39.14 is committed to
discretion of trial court.); see also Ferrer, 548 S.W.3d at 121 (finding no article-
39.14 violation).
We overrule appellant’s fifth issue.
E. Excluded testimony by appellant’s mother
In his sixth issue, appellant argues that the trial court erred in not permitting
appellant’s mother Lonye Ojeaga to testify (1) that “‘whooping’ means spanking in
their family” and (2) “about conversations she had with [appellant] when she advised
him to break up with Ms. Howard.”
The following exchange occurred during appellant’s direct examination of
Ojeaga:
Q. So in your household when you say, “You are going to get
a whipping or I whipped that child,” what does that mean to you?
[Prosecutor]: Objection to the relevance.
THE COURT: What it means to her, that is sustained.
Q. (By [Defense Counsel]) What do you believe that Sherrick
meant on the phone during your conversation when he said, “I whipped
him when Brandi asked me to”?
[Prosecutor]: Objection to the speculation.
THE COURT: Sustained.
Q. (By [Defense Counsel]) Do you use the term, [“]whipping”?
23
A. I use the term whipping; but I spank, you know, with a switch.
[Prosecutor]: Objection to the nonresponsive answer to the
question.
THE COURT: Overruled.
She answered.
Although the trial court sustained the State’s objections based on relevancy
and speculation, defense counsel was successfully able to elicit testimony from
Ojeaga, the mother of multiple children, that she uses the term “whipping” to mean
“spank[ing] . . . with a switch.” During closing argument, defense counsel argued
appellant’s jail calls only showed, whether “wrong or right,” that he “spanked”
Amarie: “We know from mama’s own testimony that whipping in the black
community means a spanking, nothing more, nothing less. It certainly doesn’t mean
to pick up a child and throw him against a wall. That isn’t a whipping. That is a
beating. A whipping is a spanking.”
An appellant may not complain on appeal about the erroneous exclusion of
evidence unless the appellant made an offer of proof in the trial court or the substance
of the evidence was apparent from the context. Tex. R. Evid. 103(a)(2). “It is the
appellant’s burden to make a record, through a bill of exceptions, of the evidence he
or she desires admitted.” Montgomery v. State, 383 S.W.3d 722, 726 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). The primary purpose of an offer of proof is to
enable the appellate court to determine whether the exclusion was erroneous and
harmful. Mays v. State, 285 S.W.3d 884, 890 (Tex. Crim. App. 2009). Appellant
did not present any specific offer of proof to the trial court to—and does not on
appeal—further explain what else Ojeaga substantively would have added to her
“whipping is spanking” definition. Nor is the substance of such allegedly excluded
testimony otherwise apparent from the record. We conclude that this error has not
been adequately preserved. See Holmes v. State, 323 S.W.3d 163, 171 (Tex. Crim.
24
Ohio App. 2009); see also Tex. R. Evid. 103(a)(2).
Second, appellant argues that Ojeaga’s testimony about her conversations
with appellant where she provided him with relationship advice would have
provided “the correct context” for and cleared up false impressions left by the State’s
evidence, namely, the text message between appellant and Howard and Howard’s
jail call with Ojeaga.
After the trial court sustained the State’s hearsay and relevancy objections,7
appellant expressly offered such testimony under rules 106 and 107 of the Texas
Rules of Evidence.8 The State continued to object on hearsay and relevancy grounds.
The State further objected because “[a]ny probative value is clearly outweighed by
any prejudicial effect.” The trial court also sustained the State’s rule-403 objection.
“The purpose of [rule 107] is to reduce the possibility of the jury receiving a
false impression from hearing only a part of some act, conversation, or writing.”
Credille v. State, 925 S.W.2d 112, 116 (Tex. App.—Houston [14th Dist.] 1996, pet.
ref’d). Rule 107 permits the introduction of otherwise inadmissible evidence when
that evidence is necessary to fully and fairly explain a matter “opened up” by the
opposing party. See Tex. R. Evid. 107; Credille, 925 S.W.2d at 116. “A party opens
the door by leaving a false impression with the jury that invites the other side to
7
In his brief, appellant argues that Ojeaga’s testimony was not hearsay because it was not
an out-of-court statement and it was offered to correct a false impression instead of the truth of the
matter. Appellant does not address relevancy.
8
See Tex. Rs. Evid. 106 (“If a party introduces all or part of a writing or recorded statement,
an adverse party may introduce, at that time, any other part—or any other writing or recorded
statement—that in fairness ought to be considered at the same time. ‘Writing or recorded
statement’ includes depositions.”), 107 (“If a party introduces part of an act, declaration,
conversation, writing, or recorded statement, an adverse party may inquire into any other part on
the same subject. An adverse party may also introduce any other act, declaration, conversation,
writing, or recorded statement that is necessary to explain or allow the trier of fact to fully
understand the part offered by the opponent. ‘Writing or recorded statement’ includes a
deposition.”).
25
respond.” Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009). “But
even if a party opens the door to rebuttal evidence, the trial judge still has the
discretion to exclude the evidence under Rule 403.” Id. We consider the trial court’s
refusal to admit evidence for an abuse of discretion. See id.; Hernandez v. State, 528
S.W.3d 229, 234 (Tex. App.—Houston [14th Dist.] 2017, no pet.); Credille, 925
S.W.2d at 119.
Here, appellant did not seek to introduce any missing portion of the text or
phone conversations introduced by the State.9 Rather, appellant sought to introduce
testimony from Ojeaga about separate phone calls she allegedly had with her son
concerning a relationship with a woman Ojeaga never met. Appellant contends that
Wolfford’s testimony “opened the door” for Ojeaga’s testimony. But appellant does
not cite, and we have not located, anything in Wolfford’s testimony that created any
false impression concerning, or invited further discussion of, other conversations
appellant may have had with his mother about Howard. See Hernandez, 528 S.W.3d
at 234. In any event, appellant does not argue that the trial court abused its “very
substantial discretion” by sustaining the State’s rule-403 objection. See Powell v.
State, 189 S.W.3d 285, 288 (Tex. Crim. App. 2006). Under these circumstances, we
cannot conclude that the trial court abused its discretion.
We overrule appellant’s sixth issue.10
9
The State offered and the trial court admitted (without objection by appellant) the flash
drive containing Howard’s full cell-phone download, see supra Section III.C, and the complete
audio recording of appellant’s jail call with Ojeaga.
10
Within his sixth issue, appellant also states without any further analysis that the trial
court prevented him from presenting a complete defense. To the extent that appellant seeks to
assert a constitutional error under Holmes, he did not preserve this issue in the trial court. See
Leza, 351 S.W.3d at 360–61; Rodriguez, 368 S.W.3d at 826.
26
F. Jury instruction on law of parties
Appellant argues “[b]ecause there was insufficient evidence that [he]
committed the crime as a principal actor, it was error to instruct the jury on the law
of parties.” We already have concluded that there is legally sufficient evidence to
support appellant’s conviction as a principal actor in the capital murder of Amarie.
Accordingly, we conclude that any error in charging the jury on the law of parties
would be harmless. See Ladd v. State, 3 S.W.3d 547, 564–65 (Tex. Crim. App.
1999).
We overrule appellant’s seventh issue.
III. CONCLUSION
Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.
/s/ Marc W. Brown
Justice
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Publish—Tex. R. App. P. 47.2(b).
27