Keith William Moore v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-09-00192-CR
KEITH WILLIAM MOORE APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Keith William Moore, proceeding pro se,2 appeals his conviction
for evading arrest or detention using a vehicle, a truck driven by Moore. For this
1
See Tex. R. App. P. 47.4.
2
After receiving a document from Moore entitled ―Declaration of Conflict
Between Attorney And Client And Motion To Remove Appointed Counsel,
Counsel’s Brief, And To Proceed Pro Se On Appellate Brief,‖ we abated this
offense, Moore was sentenced to thirty years’ imprisonment. Moore raises seven
issues in his appellate brief. He challenges the factual sufficiency of the
evidence to support his conviction and to establish that the truck was a deadly
weapon. He complains of the trial court’s admission of testimony that the fleeing
truck caused other wrecks. He claims that the trial court abused its discretion by
admitting a photograph he claims was not properly authenticated. He argues
that the trial court erred by denying his request for a jury instruction on spoliation,
that the State’s failure to preserve clothing evidence denied him due process and
a fair trial, and that the State committed errors during its closing argument that
are ―severe enough to warrant reversal.‖ In a supplemental brief, Moore argues
that the deadly weapon issue was not properly before the jury because it had not
been joined between the State and Moore at trial. We will affirm.
II. FACTUAL BACKGROUND
Moore’s conviction for evading arrest was based on the following testimony
and facts. Several witnesses testified regarding the police’s attempt to pull over
the truck allegedly driven by Moore, the subsequent police chase of the truck,
and the ensuing manhunt that led to Moore’s arrest. Because Moore challenges
appeal and requested that the trial court hold a hearing in compliance with
Faretta v. California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541 (1975), and
Hubbard v. State, 739 S.W.2d 341, 345 (Tex. Crim. App. 1987). At the hearing,
the trial court admonished Moore on the dangers of self-representation, found
that he was competent to represent himself, and allowed Moore to proceed to
represent himself pro se. Moore thereafter filed his pro se appellate brief with
this court.
2
the sufficiency of his conviction, we set forth the witnesses’ testimony in detail
below.
A. The Police Chase
1. Officer Honea
Officer Nicholas Honea testified that he was on patrol on December 29,
2007, and that he drove by a Motel 6 due to the high volume of criminal activity
reported there. Officer Honea ran a license plate check on a green GM pickup
parked in the Motel 6 parking lot, and it came back as stolen. He reported the
location of the stolen truck to other officers and various officers posted
themselves in strategic locations to observe the truck and anyone entering it.
Officer Honea and his partner Officer Banes positioned themselves in
separate patrol cars at a Conoco station south of Motel 6. About fifteen or twenty
minutes elapsed and then Officer Banes saw the green truck driving toward
them. Officers Honea and Banes followed the green truck; Officer Honea pulled
in behind the truck, and Officer Banes drove down the service road. According to
Officer Honea, both police vehicles turned on their sirens and their overhead
lights, but the green truck did not pull over.
Officer Honea’s lights shone into the back of the green truck; he observed
only one person, the driver, in the truck. The driver was wearing a white, fitted
baseball cap with an emblem on the back of it.
The truck’s driver stopped at a stoplight, and then he stepped on the gas
and did a 180-degree turn. The truck ended up facing Officer Honea. Officer
3
Honea was close enough that he ―could see the whites of the driver’s eyes.‖
Officer Honea saw that the driver had abnormally large ears and was wearing a
white baseball cap, a hoodie, and a white muscle shirt. 3 Officer Honea’s
description of the suspect was that he was ―a white white male.‖
The green truck’s engine revved,4 and the truck traveled directly toward
Officer Honea’s patrol car. Officer Honea said that he contemplated jumping out
of his vehicle and running because he ―was scared of either sustaining bodily
injury, serious bodily injury, and/or death, whichever would come first‖ from the
impact of the truck with his car. As the truck accelerated towards Officer Honea,
Officer Honea completely stopped his patrol car. The truck avoided hitting the
front of Officer Honea’s patrol car by inches. Despite the existence of other
avenues of escape, the truck accelerated into heavy oncoming traffic, which
Officer Honea considered to be deadly conduct. Officer Honea said that the
driver never made an effort to get into the correct lane of travel ―to prevent
anybody else from being injured from his deadly conduct.‖ Officer Honea
testified that he was unsure of how many wrecks the driver caused because he
was not the officer who worked the accidents.
Officer Honea turned around and attempted to catch up with the driver of
the truck. Another officer, Officer Tyler, announced over the radio that the stolen
3
Officer Honea said that he could see the hood scrunched up behind the
driver’s neck and that he could not see if the shirt had sleeves on it but noted that
it looked like a muscle shirt.
4
Officer Honea agreed that the stolen vehicle was ―a pretty powerful truck.‖
4
truck had crashed into a building, and he gave the location. Officer Honea
arrived at the crash scene and saw the driver exit the truck, wearing the jacket
with the hood flipped up over his head. The driver was wearing white tennis
shoes and blue jeans and was fairly pale. The driver fled on foot, and Officer
Honea jumped a curb in his patrol car in an attempt to follow him.5
A short time later, Officer Vasquez located a man suspected of being the
driver of the green truck at a residence on 2305 Irion. Officer Honea went to that
address and immediately recognized the person at the scene as the driver of the
green truck and identified him;6 Officer Honea also identified Moore in the
courtroom.
Officer Honea learned that a hat and a jacket were found in a grill outside a
residence on Irion, and Officer Honea testified that he assumed Officer Banes
had found the objects. Officer Honea said that they took pictures of the hat and
jacket and gave them back to Moore. Officer Honea put the hat on Moore and
said that it was a perfect fit, but Moore would not put on the jacket. Officer
Honea said that Moore told him that the hat and jacket were not his.
5
Officer Honea explained that when he observed Moore running, he looked
short because ―[h]e was not standing up walking as he normally would.‖ Moore,
however, was not a short person.
6
The in-car video from Officer Honea’s car was admitted into evidence. It
showed Officer Honea’s pursuit of the green truck and clearly shows the driver is
wearing a white baseball cap. However, it is difficult to tell from the video what
clothes the driver is wearing.
5
The officers did not call a fingerprint expert to lift fingerprints from the truck,
and they did not call anyone to obtain DNA evidence from the hat or the jacket.
Officer Honea observed the driver of the green truck commit several traffic
violations during the chase: Moore failed to yield to emergency vehicles, failed to
control speed, drove on the incorrect side of the street, caused several hit-and-
run accidents, and hit a building and ran from the scene. From what Officer
Honea observed during the pursuit, all of the acts by Moore were intentional acts
to flee from the police officers using a vehicle. Officer Honea testified that the
manner in which the truck was used by Moore could have caused serious bodily
injury or death to other drivers in that area and that it could have caused serious
bodily injury or death to Officer Honea and other officers in the area.
2. Officer Banes
Officer Scott Banes testified that on December 29, 2007, he was called by
another officer to assist with a possible stolen vehicle. Although the possible
stolen vehicle was found at the Motel 6 at 3271 North Freeway, Officer Banes
met up with Officer Honea at a gas station a block south of that location. On his
way to meet Officer Honea, Officer Banes drove by the Motel 6 and saw the
possible stolen vehicle, which was a dark green GMC pickup truck with chrome
wheels. When Officer Banes met up with Officer Honea, they discussed their
strategy and then saw the stolen vehicle pull out of the parking lot at Motel 6.
Officer Banes and Officer Honea followed the stolen vehicle in their patrol
cars and attempted to initiate a traffic stop on the freeway by activating the
6
overhead lights on both of their patrol cars. Officer Banes did not feel that the
driver was evading arrest or detention while they were on the freeway because
the driver took the first available exit at Northeast 28th Street. After exiting,
however, the driver did not pull over even though there were safe places to pull
over. At that point, Officer Banes started to think that the driver of the truck was
not going to stop.
Officer Banes activated his siren three or four blocks south of Northeast
28th Street because he wanted the driver to stop right then. The driver did not
stop but instead overaccelerated and spun around. The driver sat still for a few
seconds and then accelerated the truck and ―came flying straight towards Officer
Honea[’s] . . . patrol car.‖ Officer Tyler was positioned at the right rear of Officer
Honea’s patrol car and considered using deadly force against the driver to
protect Officer Honea. Officer Banes testified that, based on the acceleration of
the green truck, if the truck had hit Officer Honea’s car, the collision could have
caused serious bodily injury or death to Officer Honea.
Officer Honea and Officer Banes turned around to follow the green truck,
and Officer Banes put out an alert over the radio that the green truck was
traveling westbound in the eastbound lanes. Officer Banes testified that the truck
left rapidly, ―[H]e floored it‖; ―[y]ou could hear the exhaust screaming.‖ Officer
Banes testified that the speed limit on that road was forty miles per hour, that he
(Officer Banes) was traveling at fifty miles per hour, and that the green truck was
pulling away from him ―pretty quickly.‖
7
Officer Tyler responded to Officer Banes’s radio alert and announced over
the radio that the truck had attempted a turn onto Grover and had crashed into a
building. Officer Banes saw that the truck had crashed into the building and that
there was a ―smoldering wreck.‖ Officer Banes did not see anyone in the truck.
Officer Banes decided to set up a perimeter as other officers began calling
out a description of the suspect: a white male, pale skin, thin build, white muscle
shirt, and big ears. Officer Banes eventually heard that a suspect had been
detained a block and a half from where the green truck had crashed. Officer
Banes went to that location and saw that there was a suspect in custody who
matched the description that had been given over the radio, except that he was
not wearing a hoodie and a cap like the broadcast had mentioned. Officer Banes
thought it was odd that Moore was wearing a tank top because the temperature
was in the forties. Officer Banes identified Moore in the courtroom as the
suspect that he saw detained on December 29, 2007.
Officer Banes continued the investigation by speaking with a couple who
lived at 2305 Irion. He looked in their backyard and found a black hoodie and a
white baseball cap in their barbecue pit. Officer Banes reviewed the photographs
labeled as State’s Exhibit 1 and 2 and testified that he was the one who took the
photos and collected the evidence that was depicted in the photos. The fitted
baseball hat fit the suspect and was returned to him at the scene. The defense
showed Officer Banes a jacket, but he did not recognize it as the one that he had
found on the night in question. Officer Banes could not recall whether Moore
8
denied ownership of the jacket and baseball cap, but he recalled that Moore
accepted them when police returned them to him.
3. Officer Tyler
On the evening of December 29, 2007, Officer Michael Tyler was
contacted by Officer Honea. In response, Officer Tyler went to a Motel 6 at 3271
North Freeway because Officer Honea had found an unoccupied stolen vehicle.
Officer Tyler set up a north perimeter to watch the unoccupied vehicle in case
anyone approached and drove it away.
At 6:34 p.m., the vehicle, which was a 2005 green GMC pickup, left the
north exit and headed southbound. Officer Tyler notified Officer Honea and
Officer Banes, who were set up towards the freeway, that the vehicle was
headed towards them. Officer Tyler saw Officers Honea and Banes pull out
behind the vehicle, and he saw Officer Honea turn on the overhead lights on his
patrol car. The stolen vehicle failed to stop and kept traveling southbound
through heavy traffic. Officer Tyler saw the stolen vehicle run a red light and fail
to stop even though there were numerous places where he could have pulled
over.
As the stolen vehicle attempted to turn eastbound onto 28th Street, the
driver lost control, and the vehicle spun around 180 degrees; it was facing
westbound in the eastbound lanes of traffic. Officer Honea and Officer Banes
also turned onto 28th Street and attempted to block the stolen vehicle in, but the
stolen vehicle accelerated and went between them, ―real close by Officer
9
Honea’s car,‖ and continued westbound in the eastbound lanes of traffic (i.e.,
going the wrong way).
Officer Tyler took control of the pursuit from there and continued
eastbound in the correct lanes of traffic. The driver of the stolen vehicle
attempted to turn southbound onto Grover from 28th Street, lost control, and hit
the building at 2306 Northeast 28th Street.7 Officer Tyler saw the driver of the
stolen vehicle8 exit the driver’s side of the truck and run southbound on Grover,
which is near Irion Street. Officer Tyler did not see anyone else exit the truck.
After Officer Tyler saw the driver bail out of the stolen vehicle, he pulled in
behind the vehicle, confirmed that there were no other people in it, and obtained
a description of the driver. Officer Tyler said that the description of the driver that
he put out that night was ―[t]all white male, white baseball cap, dark jacket with a
hoodie, blue jeans and white shoes.‖ Officer Tyler believed that Moore had on a
white shirt under his jacket. Officer Tyler testified that after the arrest, Moore was
not wearing a cap, and Officer Tyler could see that he had a shaved head.
Officer Tyler testified that the following acts committed by Moore
constituted dangerous acts that could cause serious bodily injury or death:
running a red light in heavy traffic, losing control of a truck and spinning out 180
7
Officer Tyler testified that his patrol car had an in-car video but did not
capture the truck crashing into the building or the driver bailing out because it
was not facing that direction.
8
Officer Tyler identified Moore in the courtroom as the driver of the stolen
vehicle.
10
degrees in heavy traffic, losing control of a truck and hitting a building, and
driving into oncoming traffic during heavy traffic. Officer Tyler further testified
that, in his opinion, the truck was used as a deadly weapon––that is, in the
manner of its use, it was capable of causing serious bodily injury or death.
4. Officer Vasquez
Officer Jose Vasquez testified that on December 29, 2007, he received a
dispatch to respond to Irion Street where two officers were in pursuit of a truck
coming from the Motel 6 down 28th Street. Officer Vasquez’s duty was to warn
drivers to get out of the way because the driver of the truck was going the wrong
way on 28th Street and was being pursued by officers. Officer Vasquez’s
understanding from radio traffic was that Moore had already tried to ram a patrol
car and had come close to ramming the police officer. Based on what Officer
Vasquez heard over the radio, he responded to the area where the vehicle had
―wrecked out.‖ He saw a green pickup had hit a building and noted that it
matched the description of the dispatch.
Officer Vasquez had knowledge that the driver of the truck had fled on foot
and that he was a white male who was seen wearing a baseball hat. Officer
Vasquez started knocking on some doors and driving around the area, looking
for the driver.
Officer Vasquez was flagged down by a Hispanic male in the 2300 block of
Irion who said that a white male wearing a white muscle shirt had been sitting on
the steps of his detached garage. Officer Vasquez said that although the
11
Hispanic male spoke mostly Spanish, Officer Vasquez determined that he was
saying that the white male did not belong on his steps.
Officer Vasquez drove in the direction that the witness had flagged him
down, went down about two houses, and observed a white male with a bald head
and big ears who was wearing a white tank top t-shirt and blue jeans. Officer
Vasquez recalled that it ―was pretty cold‖ that night and that it was too cold to be
wearing a tank top, which heightened his desire to speak with the individual.
Officer Vasquez said that Moore was panting, like he had been running, and that
he looked scared. Officer Vasquez approached Moore and asked him if he lived
nearby. Moore pointed to a house from which a white couple was exiting, and
the couple had a concerned look on their faces. Officer Vasquez confirmed that
Moore did not live there.
On cross-examination, Officer Vasquez testified that the description he had
heard over the radio was a white male, wearing a hoodie and a baseball cap.
Officer Vasquez admitted that the man he found was not wearing a hoodie or a
baseball cap.
5. Esmerelda Estrada
On the night of December 29, 2007, Esmerelda Estrada was in her
apartment on Irion Street, lying down with her baby, when she saw a young man
peek through her window and move the handle of the door to her house.
Esmerelda told her husband that there was a young man outside and to go see
who it was. The young man was white and had on a white sleeveless shirt (like a
12
tank top), which Esmerelda thought was strange because it was very cold
outside. She did not see a hat.
6. Antonio Estrada
Antonio Estrada testified that he and his wife were in their living room
watching television on December 29, 2007, when his wife saw someone trying to
open the door. Antonio went outside to see who the person was and saw a
person sitting on the stairs outside his garage.
Antonio described the person as ―a white boy,‖ who was bald headed and
was wearing a tank top.9 Antonio asked the boy what he was doing, and he said,
―The cops are looking for me.‖ Antonio heard police cars going around the
neighborhood and a helicopter flying overhead. Antonio told the boy ―to get out
of here,‖ and he left. Antonio said that a squad car had been sitting nearby,
pointing its lights toward his garage, so the police immediately caught the boy.
Antonio testified that the man whom the police arrested was the same boy that
Antonio had seen sitting on the stairs outside his garage. Antonio said that he
recalled Moore because he had seen him ―face to face.‖
After the police left, Antonio went out to his grill and found a hat and a shirt
that did not belong to him. Antonio told the police that he found the jacket and
the hat.
9
Antonio identified Moore in the courtroom as the boy he had seen on his
stairs.
13
B. Moore’s Mother
Diana Hooper, Moore’s mother, admitted that she did not know anything
about the offense that Moore was on trial for and that she was testifying because
he is her son and because she does not want to see anything bad happen to
him. She testified that Moore was undergoing chemotherapy in December 2007
and that it made him ―really, really hot one minute, wanting the air on, to really,
really cold, wanting the heat on. He would go outside without a jacket.‖ Hooper
testified that Moore also experienced shortness of breath and heavy breathing
because the chemo made him ―really sick.‖ She said that he ―was too sick to do
much of anything.‖ Hooper did not know why Moore would have been hiding in
the Estradas’ backyard because the side effects from the chemo would not have
caused him to wander into people’s backyards.
C. Disposition
After hearing the above evidence, the jury found Moore guilty of the
offense of evading arrest or detention using a vehicle and assessed his
punishment at thirty years’ confinement. The trial court sentenced Moore
accordingly. This appeal followed.
III. SUFFICIENT EVIDENCE SUPPORTS MOORE’S CONVICTION
In his first issue, Moore argues that the evidence is factually insufficient to
support his conviction for evading arrest or detention using a motor vehicle.
Specifically, Moore argues that there was ―very little evidence showing that he
14
was the suspect driver.‖ In his second issue, Moore argues that the evidence is
factually insufficient to support a finding that the truck was a deadly weapon.
A. Standard of Review
The Texas Court of Criminal Appeals recently abrogated the factual
sufficiency standard of review. The court held in Brooks v. State, No. PD-0210-
09, 2010 WL 3894613, at *14 (Tex. Crim. App. Oct. 6, 2010), that there is no
meaningful distinction between the factual sufficiency standard of review and the
legal sufficiency standard of review; both apply the Jackson v. Virginia standard.
443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). Accordingly, we analyze
Moore’s factual sufficiency challenges by viewing all of the evidence in the light
most favorable to the prosecution to determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
B. Law on Evading Arrest or Detention with a Vehicle
A person commits the state jail felony offense of evading arrest if he
intentionally flees, in a vehicle, from a person that he knows is a peace officer
lawfully attempting to arrest or detain him. See Tex. Penal Code Ann.
§ 38.04(a), (b)(1) (Vernon 2003); Guillory v. State, 99 S.W.3d 735, 741 (Tex.
App.––Houston [1st Dist.] 2003, pet. ref’d).
15
C. Law on Deadly Weapon
A deadly weapon is ―anything that in the manner of its use or intended use
is capable of causing death or serious bodily injury.‖ Tex. Penal Code Ann.
§ 1.07(a)(17)(B) (Vernon Supp. 2010). To determine whether the evidence
supports a deadly weapon finding in cases involving motor vehicles, we conduct
a two-part analysis. Hilburn v. State, 312 S.W.3d 169, 177 (Tex. App.––Fort
Worth 2010, no pet.) (citing Sierra v. State, 280 S.W.3d 250, 255 (Tex. Crim.
App. 2009)). We first ―evaluate the manner in which the defendant used the
motor vehicle during the felony.‖ Sierra, 280 S.W.3d at 255. We then ―consider
whether, during the felony, the motor vehicle was capable of causing death or
serious bodily injury.‖ Id.
In examining the manner in which the defendant operated the vehicle, we
evaluate whether the driving was reckless or dangerous. Id. We consider
several factors in examining whether a defendant’s driving was reckless or
dangerous: (1) intoxication; (2) speeding; (3) disregarding traffic signs and
signals; (4) driving erratically; and (5) failure to control the vehicle. Id. at 255–56.
D. Sufficiency Analyses
1. Sufficient Evidence Exists to Support Moore’s Conviction
With regard to Moore’s sufficiency challenge to his conviction, the record,
as set forth above, contains testimony from several officers regarding their
pursuit of Moore while he was driving the stolen green truck. The record reveals
that Officer Honea and Officer Banes had their patrol cars’ overhead lights turned
16
on as they pursued Moore from the freeway onto the exit for Northeast 28th
Street. As the officers followed him, after he took the exit for Northeast 28th
Street, they also turned on their sirens. Moore stopped at a stoplight briefly
before accelerating and doing a 180-degree turn. Instead of stopping at that
point because he was now facing the wrong direction, into traffic, Moore drove
right toward Officer Honea’s patrol car. He was so close that Officer Honea
―could see the whites of his eyes.‖ Moore accelerated into heavy oncoming
traffic to get away from the officers who were pursuing him. Moore crashed the
truck into a building and then fled on foot. Officer Tyler saw the driver exit the
truck; no other person exited the truck. Officer Tyler broadcast a description of
the driver.
When police apprehended Moore, he was out of breath and appeared
scared; just moments before that, Moore had told Mr. Estrada that the police
were looking for him. Officer Honea identified Moore at the scene as the driver of
the green truck, and both Officer Honea and Officer Tyler identified Moore in
court as the driver of the green truck. Officer Honea also testified that all of the
acts that he observed Moore commit during the pursuit were intentional acts to
flee from the police officers while using a vehicle. Moreover, the record, as a
whole, reveals that Moore had numerous opportunities to pull over but instead
chose to flee from the officers, in spite of their flashing lights and blaring sirens
indicating that they wanted to detain him.
17
Viewing the evidence in the light most favorable to the prosecution, a
rational factfinder could have determined beyond a reasonable doubt that Moore
was the driver of the green truck and used the truck to intentionally flee from
Officers Honea, Banes, and Tyler, who were lawfully attempting to arrest or
detain him. See Tex. Penal Code Ann. § 38.04(a), (b)(1); Vann v. State, 216
S.W.3d 881, 889 (Tex. App.––Fort Worth 2007, no pet.) (holding that evidence
was legally sufficient to support jury’s verdict that appellant fled from police
officers who were legally attempting to detain him; during a high-speed chase,
officers spotted appellant slide into the driver’s seat and take control of the
vehicle for a few miles before the engine blew). We overrule Moore’s first issue.
2. Sufficient Evidence Exists to Support the Deadly Weapon
Finding10
With regard to Moore’s sufficiency challenge to the deadly weapon finding,
the record contains overwhelming evidence that Moore drove the truck in a
reckless or dangerous manner and that the truck was capable of causing death
or serious bodily injury. The record demonstrates that Moore drove in a reckless
10
In his supplemental brief, Moore argues that the deadly weapon issue
was not properly before the jury because it had not been joined between the
State and Moore at trial. Specifically, Moore contends that the State did not read
the deadly weapon notice before the jury and that he did not enter a plea of true
or not true before the jury. Moore’s arguments are not supported by the record.
The indictment in the record before us contains a deadly weapon notice. The
record states that the prosecutor read the indictment while the jury was present
and that Moore entered a plea of ―not guilty.‖ At the conclusion of the trial, the
jury found from the evidence beyond a reasonable doubt that Moore used or
exhibited a deadly weapon. Because the deadly weapon issue was properly
before the jury, we overrule Moore’s sole supplemental issue.
18
or dangerous manner when he failed to control his speed and when he
overaccelerated the truck and spun around, as well as when he crashed the truck
into a building; when he drove into oncoming heavy traffic in the wrong lane and
never made an effort to get into the correct lane; when he drove directly at Officer
Honea’s patrol car and missed hitting the front of it by inches; and when he
caused several accidents and drove away from them. The record also reveals
that the green truck, which was described as ―a pretty powerful truck,‖ was
capable of causing death or serious bodily injury because Officers Honea,
Banes, and Tyler all testified that the manner in which Moore drove the truck––by
driving it at Officer Honea’s patrol car and into heavy oncoming traffic––could
have caused death or serious bodily injury. Specifically, Officer Honea testified
that he was scared he would sustain serious bodily injury or death when Moore
drove the truck toward his patrol car.
Viewing the evidence in the light most favorable to the prosecution, a
rational factfinder could have determined beyond a reasonable doubt that Moore
used the green truck in a manner capable of causing death or serious bodily
injury. See Tex. Penal Code Ann. § 1.07(a)(17)(B); Sierra, 280 S.W.3d at 256
(holding evidence of deadly weapon legally sufficient when defendant exceeded
speed limit, failed to maintain control of his SUV, and in fact caused serious
bodily injury to another); Cook v. State, No. 02-09-00036-CR, 2010 WL 3504222,
at *4–5 (Tex. App.––Fort Worth Sept. 9, 2010, no pet. h.) (holding that evidence
was legally sufficient to support trial court’s deadly weapon finding when
19
defendant was driving while intoxicated, was speeding, and did not apply her
brakes prior to or after veering off the road and running into a person). We
overrule Moore’s second issue.
IV. PHOTOGRAPH WAS PROPERLY AUTHENTICATED
In his fourth issue, Moore argues that the trial court abused its discretion
by admitting State’s Exhibit 1, a photograph depicting Antonio Estrada’s grill with
a shirt on it, over his objection that it had not been properly authenticated.
A trial court’s decision as to whether evidence is properly authenticated is
reviewed under the same abuse of discretion standard as the admissibility of
evidence. See Angleton v. State, 971 S.W.2d 65, 67 (Tex. Crim. App. 1998);
Smith v. State, 683 S.W.2d 393, 404 (Tex. Crim. App. 1984); Reavis v. State, 84
S.W.3d 716, 719–20 (Tex. App.––Fort Worth 2002, no pet.). The authentication
requirement for admissibility does not require the predicate from someone with
personal knowledge of where or when the photograph was made; rather it ―is
satisfied by evidence sufficient to support a finding that the matter in question is
what its proponent claims.‖ Tex. R. Evid. 901(a); Reavis, 84 S.W.3d at 719.
Rule 901(b) provides a nonexclusive list of methods for authenticating evidence
that includes testimony of a witness with knowledge that a matter is what ―it is
claimed to be,‖ and distinctive characteristics of the evidence, including
―appearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.‖ Tex. R. Evid.
901(b)(1), (4); Reavis, 84 S.W.3d at 719. Testimony that the photograph is what
20
it purports to be is sufficient to authenticate the photograph; the accuracy of the
testimony is a question for the jury. Reavis, 84 S.W.3d at 719. If a verbal
description of the material portrayed is admissible, then a photograph reflecting
the verbal testimony is admissible. Wilkerson v. State, 726 S.W.2d 542, 547
(Tex. Crim. App. 1986), cert. denied, 480 U.S. 940 (1987). A trial court does not
abuse its discretion by admitting evidence when it reasonably believes that a
reasonable juror could find that the evidence has been authenticated or
identified. Druery v. State, 225 S.W.3d 491, 502 (Tex. Crim. App.), cert. denied,
552 U.S. 1028 (2007).
Here, the record contains the following with regard to the State’s
authentication of State’s Exhibit 1 by Mr. Estrada:11
[PROSECUTOR]: Your Honor, may I approach?
THE COURT: Yes, you may.
Q. Mr. Estrada, I’m showing you what’s been previously marked as
State’s Exhibit No. 1 and State’s Exhibit No. 2. Do you recognize
these?
A. That is a big grill that I have in my house to grill meat.
Q. Does State’s Exhibit 1 and State’s Exhibit 2 fairly and accurately
depict your grill as it appeared on December 29th, 2007?
A. Yes.
Q. Thank you very much.
11
The record reflects that Mr. Estrada spoke Spanish and that the parties
utilized an interpreter during his questioning.
21
Thereafter, the State attempted to offer two photographs of the grill––State’s
Exhibit 1 and 2––into evidence, and Moore’s counsel asked to take Mr. Estrada
on voir dire.
BY [DEFENSE COUNSEL]:
Q. In State’s Exhibit 2, is this part of your grill?
A. The hat, no. The other, yes.
Q. Is that part of your grill?
A. No. I cannot really look at it very well because of the light it
reflect[s]. But after the police left, I went to see into it, and there was
the hat and there was this shirt. But that’s my grill, yes. It is my grill.
Q. What is this?
A. There was a hat and a shirt that was in there.
Q. Is this the shirt?
A. I don’t know. I cannot really make it out. I cannot tell you right
now what it is because I cannot make it out.
[DEFENSE COUNSEL]: Your Honor, I’ll object to State[’]s
Exhibit 1 on the basis that it’s not showing his grill as he recognizes
it.
Q. And with regard to State’s Exhibit 2, was this hat in the grill when
you looked at it?
A. Yes.
Q. When was that?
A. When was that? When I saw him.
Q. You were looking at this hat when you were looking at him in the
garage?
22
A. No. He wasn’t wearing a hat. At that time he was bald headed.
[DEFENSE COUNSEL]: Your Honor, I’m going to object to
State’s Exhibit 1 and 2 on the basis it does not appear to be the grill
that he described that he – it appears to be pictures of something in
something that he can’t describe.
THE COURT: All right. Let me see the exhibits.
All right. Your objections are overruled.
State’s Exhibits 1 and 2 are admitted into evidence.
Moore thereafter requested a running objection, which the trial court granted.
As set forth above, Mr. Estrada testified on direct examination that the
photographs accurately depicted his grill with a hat and a shirt12 on it on the night
in question, which was enough by itself to authenticate the photograph. See
Reavis, 84 S.W.3d at 719 (recognizing that the ultimate test for authentication is
that the proponent of the evidence has made a showing sufficient to permit a
reasonable juror to find that the evidence is what its proponent claims). Defense
counsel’s questions on voir dire concerning the hat and the shirt did not
undermine or refute Mr. Estrada’s testimony that the picture accurately depicted
his grill on the night in question; although the photograph of the grill was taken
from a side angle, making it difficult to see the details of the objects on the grill,
Mr. Estrada testified that State’s Exhibit 1 was an accurate portrayal of how his
grill looked when he found the items on it.
12
Because Mr. Estrada referred to the item as a ―shirt,‖ we will use that
term when referring to his testimony, even though the officers described the item
as a ―jacket‖ or a ―hoodie.‖
23
Even assuming that the trial court abused its discretion by admitting
State’s Exhibit 1, any error was harmless. See Quinonez-Saa v. State, 860
S.W.2d 704, 707 (Tex. App.––Houston [1st Dist.] 1993, pet. ref’d) (holding that
error, if any, from the admission of the autopsy photographs was harmless
because the photographs were not the only evidence that established the close
range of the gunshot wound to the complainant’s head). Officer Honea testified
without objection that he saw Moore wearing a hat and a jacket (referred to by
Mr. Estrada as a ―shirt‖) while he was driving; that a hat and a jacket were found
on a grill at a residence; that he gave Moore the hat and the jacket, and Moore
accepted them; and that the hat fit Moore, but Moore would not put on the jacket.
Because a photograph is merely a graphic portrayal of facts that may be proved
by oral testimony and because unobjected-to testimony at trial indicated Moore
was wearing a jacket or a ―shirt‖––like the one found in the grill––while he was
driving, any error in admitting the photograph was harmless. Cf. Davis v. State,
687 S.W.2d 78, 82 (Tex. App.—Dallas 1985, pet. ref’d) (holding that trial court
did not err by admitting photographs that depicted complainant’s condition
because several witnesses testified to complainant’s appearance without
objection). We therefore overrule Moore’s fourth issue.
V. NO JURY INSTRUCTION ON SPOLIATION MANDATED UNDER THE CIRCUMSTANCES
In his fifth issue, Moore argues that the trial court erred by denying his
request for a jury instruction on spoliation because the Fort Worth Police
24
Department failed to preserve the hat and the jacket that were involved in the
case.
Any federal constitutional duty to preserve evidence is limited to evidence
that might be expected to play a significant role in the suspect’s defense.
California v. Trombetta, 467 U.S. 479, 488, 104 S. Ct. 2528, 2534 (1984). ―To
meet this standard of constitutional materiality, evidence must both possess an
exculpatory value that was apparent before the evidence was destroyed, and be
of such a nature that the defendant would be unable to obtain comparable
evidence by other reasonably available means.‖ Id. at 489, 104 S. Ct. at 2534
(citation omitted). ―[U]nless a criminal defendant can show bad faith on the part
of the police, failure to preserve potentially useful evidence does not constitute a
denial of due process of law.‖ Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.
Ct. 333, 337 (1988).
Here, the record reveals that Officer Honea testified, ―We took pictures of
the hat and jacket. And after we were done taking pictures of it, we gave it back
to the arrested person.‖ Thus, according to police, Moore received possession of
the items that he claims police should have preserved. No evidence exists in the
record that police destroyed or spoliated evidence; they gave the items to Moore
at the scene. Furthermore, neither the shirt nor the hat constitute exculpatory
evidence; that is, even if these items had contained DNA not belonging to Moore,
it would not prove Moore had not worn them on the night in question. A
defendant is not entitled to a spoliation instruction when there is no showing that
25
the evidence was exculpatory or that there was bad faith on the part of the State
in connection with its loss. White v. State, 125 S.W.3d 41, 43–44 (Tex. App.––
Houston [14th Dist.] 2003), pet. ref’d, 149 S.W.3d 159 (Tex. Crim. App. 2004).
We hold that the trial court did not abuse its discretion by denying Moore’s
request for a spoliation instruction. We overrule Moore’s fifth issue.
VI. FAILURE TO PRESERVE ARGUMENTS
In his third issue, Moore argues that the trial court erred by overruling his
lack-of-personal-knowledge objection to Officer Honea’s testimony that the green
truck had caused other wrecks that evening. Officer Honea testified that he was
―unsure of how many wrecks [Moore’s driving] caused, because I’m not the one
who worked the wrecks.‖ Officer Honea later testified, however, that he saw the
driver of the green truck do the following:
Failing to yield to emergency vehicles, for one. Operating a motor
vehicle at a point to lose control -- failure to control speed. Drove on
the incorrect side of the street. Several hit-and-run accidents. Like I
said, I’m unsure of the number of accidents the vehicle caused. And
also hit a building and ran away from the scene after hitting the
building.
In order to preserve error regarding the admission of evidence, an
appellant must make a timely objection to each instance in which the
objectionable testimony is elicited. Ethington v. State, 819 S.W.2d 854, 858
(Tex. Crim. App. 1991). Any error in the admission of evidence is cured when
the same evidence comes in elsewhere without objection. Id. Thus, when there
is an objection to the first question on a particular subject, but no objection to
26
subsequent questions on the same subject, no error is preserved regarding the
admission of testimony on that subject. Id. at 859–60; see also Salazar v. State,
131 S.W.3d 210, 214–15 (Tex. App.––Fort Worth 2004, pet. ref'd). Because
Officer Honea later testified without objection to the same facts Moore now
complains of, this complaint is not preserved for our review. We overrule
Moore’s third issue.
In his sixth issue, Moore argues that the State’s failure to preserve the
shirt/jacket and hat that was found on the night of the offense denied him due
process and a fair trial. Moore admits that he did not raise a constitutional
objection at trial but claims that under Freeman v. State, 276 S.W.3d 630, 633–
34 (Tex. App.––Waco 2008), pet. granted, judgm’t vacated, 286 S.W.3d 370
(Tex. Crim. App. 2009), his request in asking for the spoliation instruction is
sufficient to preserve his complaint for review. Moore’s reliance on the first
Freeman case is misplaced because on remand from the Texas Court of
Criminal Appeals, the Waco Court of Appeals held that Freeman’s request for a
spoliation instruction did not preserve his constitutional complaint. Freeman v.
State, No. 10-07-00363-CR, 2010 WL 199879, at *1 (Tex. App.––Waco Jan. 20)
(op. on remand, not designated for publication), pet. stricken, 2010 WL 3431134
(Tex. Crim. App. 2010). Thus, because Moore failed to raise this due process
complaint in the trial court, it is not preserved for our review. Tex. R. App. P.
33.1(a)(1); Mosley v. State, 983 S.W.2d 249, 265 (Tex. Crim. App. 1998) (op. on
reh’g), cert. denied, 526 U.S. 1070 (1999) (requiring a party to present to the trial
27
court a timely request, objection, or motion that states the specific grounds for
the desired ruling in order to preserve the complaint for appellate review).
In his seventh issue, Moore argues that during the State’s summation and
final argument in the guilt/innocence phase, the State committed errors that were
so severe they warrant reversal.13 Moore did not object to any of the statements
he now complains of that were made by the State during its closing arguments.
Consequently, these complaints are likewise not preserved for our review. See
Tex. R. App. P. 33.1(a)(1).
VII. CONCLUSION
Having overruled all seven of Moore’s issues, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 18, 2010
13
Moore contends that the State twice told the jury that he had been found
in the Estradas’ backyard and that the State told the jury that no one––including
Moore’s mother, friends, neighbors, or relatives––took the stand and had ―one
good thing‖ to say about him.
28