Ray Don Wilson v. the State of Texas

Affirm and Opinion Filed June 15, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01131-CR
RAY DON WILSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1875289-U
MEMORANDUM OPINION
Before Justices Partida-Kipness, Pedersen, III, and Nowell
Opinion by Justice Nowell
A jury convicted Ray Don Wilson of murdering Princess White and sentenced
him to seventy years’ confinement. In a single issue, appellant argues the trial court
abused its discretion by overruling his evidentiary objection to testimony presented
at trial. We affirm the trial court’s judgment.
FACTUAL BACKGROUND
Appellant was in an on-again/off-again relationship with Princess White for
approximately nine years, and they were sharing an apartment on February 25, 2018,
when White died from multiple gunshot wounds.
Appellant and White kept guns in the bedroom and main living space of their
apartment. A witness testified: “They wasn’t [sic] handguns. They were kind of on
the bigger side.” White’s sister, Nellie Simmons, testified that White usually carried
a black handgun and appellant had a favorite gun he called “El Chapo.”
Simmons testified the couple had ongoing “trust issues.” In January 2018,
White and appellant had a “falling out” after appellant learned that White sent money
to an ex-boyfriend who was incarcerated. Simmons explained that White “wanted
her king”1 and she wanted to have children with appellant, but if their relationship
was not successful, then White “would like to be with this person that’s in prison.”
White briefly moved out of the apartment in January or early February 2018.
On the day she was killed, White spent time with Simmons and appellant.
White and Simmons got into an argument, and Simmons accused White of having
had sex with a man named Harvey; appellant was present when Simmons made the
accusation.
Kimberly Pye, a friend of White’s, talked to White on the phone after 9:00
p.m. on February 25. White sounded like she had been crying. White “was upset
because she said that her sister told [appellant] that she was messing with the plug2
and [appellant] believed her.” After a few minutes, White said she needed to get off
of the phone because “[T]here go my king.” Pye interpreted White’s statement to
1
Several witnesses testified that White referred to appellant as her “king.”
2
Pye explained “the plug” is “the person [White] was getting her drugs from.”
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mean that appellant was walking up the stairs to their apartment, and White could
see his approach via the camera above their front door.
Genetra Carter received a Facebook call from White at 9:54 p.m. on February
25. White sounded distressed and told Carter appellant was with her. She asked
Carter to explain White’s familial relationship with Harvey. Carter testified: “I said,
That’s our cousin. I hear blank silence on the phone and the next thing I know, she
got - - she gets back on the phone and she’s like, Aunt G, Ray just shot me.” Carter
also described the “blank silence” as a “loud echo” and as “loud, muffled noises”;
Carter analogized it to the sound produced when someone drops a phone and is
trying to retrieve it. Carter testified she then heard White “gurgling and gasping for
breath. And so I ran downstairs to get the other phone, my mom’s phone. And I told
my mom, [White] just said that Ray shot her. And so I called 911 on the other
phone.” Carter stayed on the phone with White, but White did not speak again. At
some point, the call dropped and Carter tried to call White back, but White did not
answer.
When the police entered the apartment, they found White’s body on the floor
just inside the front door. The apartment “looked like there might have been a
struggle,” but there were no signs of forced entry and appellant was not in the
apartment. Neighbors who lived downstairs said they heard gunshots.
The police did not see any firearms in the living area of the apartment.
However, one officer noticed bullet holes near the kitchen. He testified: “it looked
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to be like if someone had shot with a shotgun through, you know, the ceiling area.”
He speculated the damage was from a shotgun because “[t]he amount of holes in the
area . . . in the ceiling. There was [sic] small, like, pellet-size holes” similar to
birdshot. The jury saw pictures of the apartment, including pictures showing the
bullet holes in the walls and ceiling.
Detective Kevin Burkleo of the Irving Police Department obtained appellant’s
T-Mobile account records. Burkleo observed that appellant’s cell phone left the area
near the apartment approximately three minutes after the offense was thought to have
occurred and continued moving away from the apartment. Burkleo created an
animation using appellant’s cell phone data “so that [the jury] could see the call
progression of the phone leaving the area.”
Appellant was not at the apartment when the police arrived, and a detective
was assigned to locate him. During her search, the detective discovered a woman
who she believed was in an on-again/off-again relationship with appellant. When the
detective went to the woman’s apartment, she saw appellant get into a car along with
other people from the apartment. The police stopped their vehicle, and appellant was
removed from the vehicle without incident and taken into custody. Appellant did not
ask the officers why he was being arrested.
LAW & ANALYSIS
Appellant agues the trial court abused its discretion by overruling his
objection to testimony from Nellie Simmons. Appellant asserts some of her
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testimony violated Texas Rule of Evidence 404(b), and, by permitting the testimony,
the trial court forced him to testify in his own defense in violation of his Fifth
Amendment right to remain silent. The State responds that the evidence was
admissible pursuant to article 38.36 of the code of criminal procedure.
During Simmons’s testimony, the State asked Simmons about an incident in
January 2018 between appellant and White. After appellant objected, the court held
a hearing outside the presence of the jury during which Simmons testified. In January
2018,3 White called her and White said: “Girl, Ray. Ray shooting. He trying to shoot
me. He trying to kill me.” Simmons could hear appellant loudly calling White’s
name.
Simmons was at their mother’s house when she received the call, and she told
White to drive there. When White arrived, White told Simmons and their mother
that White and appellant “had smoked some PCP that day and he [appellant] rigged
out and started tripping.” The women then went to White’s apartment. Simmons
went inside the apartment and found appellant disoriented from drug use. Simmons
testified: “So [White] is showing me all the bullet holes in the house.” Simmons and
White left the apartment, White took Simmons and their mother back home, and
then White returned to the apartment and cleaned up the mess created by appellant
shooting his gun inside. Later White called Simmons and said she had cleaned up
3
Simmons did not know the date of the incident, but testified it was within three weeks to one month
of the date when White was killed.
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and fixed the apartment so no one could tell what happened and appellant would not
be embarrassed. Simmons went back to the apartment the following day and thought
White had done “an amazing job covering up the holes” and cleaning up the dry wall
from the floor.
After Simmons’s testimony, the trial court heard arguments from appellant
and the State. The court overruled appellant’s objections to the testimony, and
Simmons testified about the January 2018 event in the presence of the jury. While
no limiting instruction was given at the time of Simmons’s testimony, the jury charge
includes an instruction about extraneous offenses.
An appellate court reviews a trial court’s decision to admit or exclude
evidence for an abuse of discretion. Henley v. State, 493 S.W.3d 77, 82–83 (Tex.
Crim. App. 2016). When a trial court admits evidence in violation of evidentiary
rules, that admission of evidence is non-constitutional error. Delgado v. State, 635
S.W.3d 730, 754 (Tex. App.—Dallas 2021, pet. ref’d) (quoting Jones v. State, 111
S.W.3d 600, 604 (Tex. App.—Dallas 2003, pet. ref’d)). We disregard any non-
constitutional error that does not affect a defendant’s “substantial rights.” TEX. R.
APP. P. 44.2(b); Delgado, 635 S.W.3d at 754. A substantial right is affected if an
error has a substantial and injurious effect or influence in determining the jury’s
verdict. Delgado, 635 S.W.3d at 754 (citing Thomas v. State, 505 S.W.3d 916, 926
(Tex. Crim. App. 2016)). Substantial rights are not affected by the erroneous
admission of evidence “if the appellate court, after examining the record as a whole,
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has fair assurance that the error did not influence the [fact finder], or had but a slight
effect.” Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); see also
Schmutz v. State, 440 S.W.3d 29, 39 (Tex. Crim. App. 2014) (“A substantial right is
affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict.”). When assessing the likelihood that the jury’s
decision was adversely affected by the error, we must “consider everything in the
record, including any testimony or physical evidence admitted for the jury’s
consideration, the nature of the evidence supporting the verdict, the character of the
alleged error and how it might be considered in connection with other evidence in
the case.” Motilla, 78 S.W.3d at 355.
Even if we assume for the purposes of this appeal that the trial court abused
its discretion by admitting Simmons’s testimony about the January 2018 incident,
we conclude the error did not affect appellant’s substantial rights.
Simmons testified without objection that appellant and White had ongoing
“trust issues,” and, in January 2018, appellant and White had a “falling out” after
appellant learned that White sent money to an ex-boyfriend. On the day White was
killed, Simmons accused White of having sex with another man; appellant was in
the car when Simmons lodged the allegation.
A few hours later, White told Carter that appellant was with her, asked about
her familiar relationship to the man she allegedly had sex with, and then said
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appellant shot her. After White said appellant shot her, Carter heard White “gurgling
and gasping for breath.” White did not say anything else.
When the police arrived, they found White’s body and the apartment showed
signs of a struggle. Although appellant was not present, his cell phone records
showed he had been in the vicinity of the apartment. Shortly after the time when
White was believed to have been shot, appellant’s cell phone moved away from the
apartment.
The jury also heard testimony that there were several guns in the apartment
and the walls and ceiling appeared to have sustained damage from shotgun shots.
The jury saw pictures of the damaged walls and ceiling.
Finally, the jury charge included an instruction about extraneous offenses. We
generally presume that the jury follows the trial court’s instructions in the manner
presented. Davis v. State, 581 S.W.3d 885, 894 (Tex. App.—Dallas 2019, pet. ref’d)
(citing Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005)). An appellant
may refute this presumption, but he must do so by pointing to evidence that the jury
failed to follow the instruction. Id. (citing Thrift, 176 S.W.3d at 224). No such
evidence was identified in this case.
Having reviewed the entire record, we cannot conclude the admission of
Simmons’s testimony about which appellant complains affected appellant’s
substantial rights. While appellant argues the admission of that evidence forced him
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to testify in his own defense in violation of his Fifth Amendment right, nothing in
the record supports this claim. We overrule appellant’s sole issue.
CONCLUSION
We affirm the trial court’s judgment.
/Erin A. Nowell//
ERIN A. NOWELL
JUSTICE
191131f.u05
Do Not Publish
TEX. R. APP. P. 47.2(b)
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RAY DON WILSON, Appellant On Appeal from the 291st Judicial
District Court, Dallas County, Texas
No. 05-19-01131-CR V. Trial Court Cause No. F-1875289-U.
Opinion delivered by Justice Nowell.
THE STATE OF TEXAS, Appellee Justices Partida-Kipness and
Pedersen, III participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
Judgment entered this 15th day of June, 2022.
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