Christopher Rommell McKinney v. the State of Texas

AFFIRMED as MODIFIED and Opinion Filed July 11, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00100-CR
CHRISTOPHER ROMMELL MCKINNEY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F-1975306-M
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Smith
Opinion by Justice Smith
A jury convicted appellant Christopher Rommell McKinney of murder and
sentenced him to thirty years’ confinement. In four issues, he challenges (1) the
denial of a mistake-of-fact jury instruction, (2) the inclusion of language from Texas
Penal Code section 9.31(b)(5), (3) the admission of certain autopsy photographs, and
(4) the use of a videotaped police interview for improper impeachment. In a cross-
point, the State requests modification of the judgment to correctly reflect appellant’s
“not guilty” plea and to add a deadly weapon affirmative finding. As modified, we
affirm the trial court’s judgment.
Background
This case involves a shooting that resulted in the death of Demondre Green
on February 24, 2019. The jury heard conflicting versions of the altercation leading
up to the shooting. The following facts were undisputed.
On February 23, 2019, Demondre picked up Marcus Green, his older brother,
and drove a gray Ford Focus to Kung Fu Saloon in Uptown Dallas. They arrived
around 10:45 p.m. and parked outside the Routh Street Flat condos.
Brandon Fuller and appellant met up the same evening. Appellant drove his
black Infiniti to Club Level, another bar in Uptown. Appellant parked directly
behind Demondre’s Focus. Brandon described the parking as “tight,” and the space
between the two cars as “snug.” They stayed at the club until closing time around 2
a.m. and then walked back to the Infiniti.
Demondre and Marcus also left Kung Fu Saloon near closing time and walked
back to the Focus. Demondre arrived first and got in. From Marcus’s vantage point,
the Infiniti was parked very close behind the Focus. The subsequent interactions
between Marcus, Demondre, Brandon, and appellant were in dispute.
Marcus’s Testimony
Demondre commented to Marcus that he might hit the Infiniti because of how
close it parked to them. Marcus repeated, “Hit the car?” Marcus then heard
appellant yell, “He bet not hit my car.” Marcus turned around and said to appellant,
“like, why did you park so close. What you mean, not hit your car, like you are in
the wrong.”
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Marcus heard appellant ask one of his friends to let him in the car to get a
weapon. Appellant then opened the front passenger’s side door, grabbed a handgun,
put it in his front waistband, and walked to the front of the car. Marcus saw the gun
handle sticking out of appellant’s pants. Marcus then yelled and asked Demondre if
he had his A.R. 15. Marcus asked a couple times about the A.R., but Demondre did
not answer. Marcus knew that meant Demondre did not have it. Marcus denied
saying, “Get the A.R.”
While Marcus directed Demondre out of the parking spot, appellant stood in
the middle of the street about six to eight feet from the Focus. Marcus said appellant
stared at them “like he was mad at the world.” They were in the car getting ready to
pull out, and Marcus said, “What are you mad at, this is your fault. You blocked us
in this parking spot. Like what is your problem.” Then appellant pulled his gun and
started shooting.
Brandon’s Testimony
As Brandon and appellant walked to the Infiniti, Brandon heard Marcus say,
“Hit that whoe,” which he took to mean Demondre should hit the Infiniti if he needed
to get out. Brandon said they were getting ready to leave, so appellant did not need
to hit the Infiniti. Appellant said, “Nah, hit the whoe if he want to.” Brandon then
heard someone inside the car say, “Go get the A.R.” He emphasized he heard, “Get
the A.R.,” not “Do you have the A.R.?” Appellant then retrieved a gun from the
glovebox and put it in the front of his pants. Brandon was a few feet behind “keeping
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an eye on everything.” Brandon kept telling appellant to “chill,” but he was not
listening.
Brandon and appellant walked to the middle of the street. Brandon believed
Demondre saw appellant’s gun and then said something like, “You got the whoe,
shoot the whoe.” He described it as Demondre challenging appellant. Appellant
was approximately two feet away from the driver’s side when he began shooting.
Appellant’s Testimony
Appellant remembered parking close to a Ford Focus, “but it wasn’t just real
close.” He easily slipped in and parked behind it. When they returned to the parked
Infiniti, he heard a guy say, “Hit that whoe, hit that whoe.”
Brandon commented that they better not hit the car, but appellant was not
concerned because he had insurance. Appellant said, “They can hit that whoe,” and
then Demondre said, “Oh, you think this is a game, huh.” Appellant heard
Demondre say several times, “Get the A.R.” Appellant was scared and told
Demondre it was not that serious.
Appellant then walked to his car, opened the glove box, and retrieved his
insurance card. A pistol fell out, so he grabbed it and put it in his waistband because
he wanted to be safe.
Appellant walked towards Demondre to exchange insurance, but Demondre
refused the card and said he did not want to talk about it because he was “about
action.” Demondre tapped Marcus “like a guy code,” and Marcus reached behind
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the driver’s seat. Appellant saw Demondre with a handgun, so he quickly pulled his
gun from his waistband, closed his eyes, and started shooting. Appellant described
it as a “battlefield” or an “old Western movie.” He never saw an A.R., and a weapon
was never found in the Focus.
Post-Shooting Events
After the shooting, witnesses described appellant as “calm,” like in “zombie
mode,” and not like someone scared or in danger. Appellant then drove slowly away
with no headlights.
Police arrived shortly thereafter. Demondre died at the scene from gunshot
wounds to his head and chest area. Dr. Janis Townsend-Parchman, the medical
examiner, described to the jury the gunshot wounds and the bullets’ trajectory and
distance. The trajectory of the bullets was likely a slightly downward angle, and the
closest was shot from two to three feet away from Demondre.
Two days after the incident, Brandon identified appellant in a police lineup.
Shortly thereafter, appellant was taken into custody. He was voluntarily interviewed
by Detective Grubbs.
At trial, appellant admitted he intentionally shot and killed Demondre, but it
was in self-defense. He testified it was necessary to use his gun only after he
allegedly saw Demondre pull his gun. The jury rejected he acted in self-defense and
sentenced him to thirty years’ confinement. This appeal followed.
Mistake-of-Fact Instruction
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In his first issue, appellant argues the trial court erred by denying his request
for a mistake-of-fact instruction. The State responds the trial court properly denied
the requested instruction because any mistake of fact would not have negated the
culpable mental state for the charged offense.
During the charge conference, appellant requested a mistake-of-fact
instruction because he reasonably believed Demondre or Marcus reached for a gun
or had a gun. The State responded what appellant called a mistake of fact was really
a dispute of facts. The trial court overruled appellant’s requested instruction.
A trial court is obligated to prepare a jury charge that accurately states the law
applicable to the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App.
2007). It is a defense that the defendant “through mistake formed a reasonable belief
about a matter of fact if his mistaken belief negated the kind of culpability required
for commission of the offense.” TEX. PENAL CODE ANN. § 8.02(a). “Kind of
culpability” refers to the mental state required for criminal responsibility. Celis v.
State, 416 S.W.3d 419, 430–31 (Tex. Crim. App. 2013). Thus, a mistake-of-fact
defense turns on the mistaken belief of the defendant, not others, and considers the
conduct of others only to the extent that it contributes to the defendant’s belief.
Flores v. State, 573 S.W.3d 864, 868 (Tex. App.—Houston [1st Dist.] 2019, pet.
ref’d).
An instruction on mistake of fact is limited to the culpable mental state
required for the offense, and therefore, can be difficult to obtain. See Celis, 416
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S.W.3d at 430. Here, the indictment alleged two alternate theories of murder: (1)
appellant intentionally and knowingly caused Demondre’s death by shooting him
with a firearm; and (2) intentionally and knowingly committed an act clearly
dangerous to human life by shooting Demondre with a firearm causing his death.
See TEX. PENAL CODE ANN. § 19.02(b). Appellant admitted he intentionally shot
Demondre. Appellant’s alleged mistaken belief, even if accepted as true, would not
negate the culpable mental state for the charged offense.
This case is distinguishable from Granger v. State, 3 S.W.3d 36 (Tex. Crim.
App. 1999), in which the court of criminal appeals concluded the defendant was
entitled to a mistake-of-fact instruction. In that case, the defendant fired several
gunshots into what he thought was an empty car. Id. at 41. The court concluded
that accepting defendant’s statement as true, he could not have “intentionally or
knowingly” caused the death of the victim if he did not know the victim was in the
car. Id. Therefore, the defendant was entitled to a mistake-of-fact instruction
because if his mistake was believed, the culpable mental state for murder would be
negated. Id. Here, appellant did not shoot into a mistaken empty car, but instead
admittedly and intentionally shot Demondre who he knew was in the car.
This Court’s recent opinion in Guyger v. State, No. 05-19-01236-CR, 2021
WL 5356043, at *5 (Tex. App.—Dallas Nov. 17, 2021, pet. ref’d) (not designated
for publication) further supports our conclusion. In Guyger, the appellant argued
any intent to commit murder was negated by her mistaken belief that she entered her
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own apartment, and she believed the victim was an intruder. Id. However, we
concluded the mistaken facts upon which she relied were relevant only to whether
she was justified in shooting the victim and did not negate her intent to kill the
victim. Id. Like the facts here, appellant’s mistake of fact was relevant to whether
his shooting was justified. His right to act in self-defense, if applicable, did not
negate his intent to kill; self-defense instead would have justified the shooting. See
id. The jury, however, concluded the shooting was not justified, and he has not
challenged the sufficiency of the evidence supporting his conviction.
The evidence, when viewed in the light most favorable to appellant, does not
establish a mistake of fact. The trial court properly denied a mistake-of-fact
instruction. Appellant’s first issue is overruled.
Texas Penal Code § 9.31(b)(5) Instruction
In his second issue, appellant argues he was egregiously harmed by the
inclusion of language in the jury charge from penal code section 9.31(b)(5). See
TEX. PENAL CODE ANN. § 9.31(b)(5).
Section 9.31(b)(5) states that the use of force is not justified if the actor sought
an explanation from or discussion with the other person concerning the actor’s
differences with the other person while the actor was carrying a weapon in violation
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of section 46.021 or possessing or transporting a weapon in violation of section
46.05. Id. The jury was instructed, in relevant part, as follows:
The use of force against another is not justified . . . if the actor sought
an explanation from or discussion with the other person concerning the
actor’s differences with the other person while the actor was (a)
intentionally, knowingly, or recklessly carr[ying] on or about his person
a handgun; and (b) is not (1) on the person’s own premises under the
person’s control; or (2) inside of or directly enroute to a motor vehicle
or watercraft that is owned by the person or under the person’s control.
If, as here, the defendant did not object to the alleged error at trial, we reverse
only if there is error, and the error is “so egregious and created such harm that the
defendant has not had a fair and impartial trial.” Barrios v. State, 283 S.W.3d 348,
350 (Tex. Crim. App. 2009). We view the evidence in the light most favorable to
giving the instruction to determine whether the limiting instruction was warranted.
See Fink v. State, 97 S.W.3d 739, 743 (Tex. App.—Austin 2003, pet. ref’d).
A charge limiting a right to self-defense under section 9.31(b)(5) is properly
given when (1) self-defense is an issue; (2) there are facts in evidence showing that
the defendant sought an explanation from or discussion with the victim concerning
the defendant’s differences with the victim; and (3) the defendant was unlawfully
carrying a weapon. See Lee v. State, 259 S.W.3d 785, 789 (Tex. App.—Houston
1
At the time of the offense, section 46.02 stated a “person commits an offense if the person
intentionally, knowingly, or recklessly carries on or about his or her person a handgun . . . if the person is
not on the person’s own premises under the person’s control; or inside of or directly enroute to a motor
vehicle or watercraft that is owned by the person or under the person’s control.” See Act of May 25, 2011,
82d Leg., R.S., ch. 679, § 1, sec.46.02, 2011 Tex. Gen Laws 1640 (amended 2021) (current version at TEX.
PENAL CODE ANN. § 46.02).
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[1st Dist.] 2007, pet. ref’d). If evidence raising the issue exists, an instruction should
be submitted. Id.
It is undisputed that self-defense was an issue in the case. Appellant admits
there was evidence that appellant approached Demondre’s car to discuss damage to
his Infiniti, but he argues there was no evidence that he armed himself and engaged
in a discussion with the intent of shooting Demondre “because of the vehicle
damage.” He claims he did not shoot into the vehicle because of a disagreement
over insurance or the extent of damage to the Infiniti, but only because he believed
Demondre was in possession of an A.R.
The term “differences” is not defined in the statute. The plain meaning of
“differences” is a “disagreement of opinion” or “an instance of disagreement or point
upon which there is disagreement.” See Hernandez v. State, 309 S.W.3d 661, 664
(Tex. App.—Houston [14th Dist.] 2010, pet. ref’d) (citing WEBSTER’S THIRD INT’L
DICTIONARY 629 (1993)).
Appellant encourages a narrow application of “differences” within the context
of these facts. We reject his invitation. The record indicates a heated disagreement
about parking occurred prior to the shooting; therefore, there is evidence showing
that appellant sought an explanation from or discussion with Demondre concerning
their differences. See TEX. PENAL CODE ANN. § 9.31(b)(5); Lee, 259 S.W.3d at 789.
Finally, it was undisputed that appellant was not on his own premises or
directly enroute to this car when he shot Demondre. Moreover, appellant admitted
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that he did not have a license to carry a handgun and was unlawfully carrying it on
the night in question. The trial court did not err by submitting the 9.31(b)(5) limiting
instruction to the jury. Lee, 259 S.W.3d at 789.
In reaching this conclusion, we reject appellant’s contention that the limiting
instruction was misleading because it did not also include an instruction on the
traveler’s defense. See TEX. PENAL CODE ANN. § 46.15(b)(2) (stating that section
46.02 does not apply to a person “traveling”). Even though the traveling exception
has been in existence in Texas since the enactment of carrying handguns, what
constitutes “traveling” remains a source of discussion. See Sumrall v. State, No. 12-
20-00215-CR, 2021 WL 4057247, *7 (Tex. App.—Tyler Aug. 25, 2021, no pet.)
(mem. op., not designated for publication); see also Sanchez v. State, 122 S.W.3d
347, 355 (Tex. App.—Texarkana 2003, pet. ref’d). Courts have generally
considered the distance, time, and mode of travel when determining whether the
traveler’s exception applies. Sanchez, 122 S.W.3d at 355–56. However, “if the
journey is so short there is no real journey, then one is not a traveler.” Id. (concluding
defendant who drove approximately fifteen miles was not traveling for purposes of
statutory exception as matter of law). But see Ayesh v. State, 734 S.W.2d 106, 108
(Tex. App.—Austin 1987, no pet.) (discussing cases concluding exception applied
when person journeyed more than thirty-five to forty miles and trip was typically
overnight).
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Appellant contends that because there is no “bright-line rule for determining
whether one is a traveler,” it must be submitted to the jury and not decided as a
matter of law. However, other appellate courts have determined, as a matter of law,
that the exception does not apply despite the lack of any bright-line rule. See, e.g.,
Sanchez, 122 S.W.3d at 356; Perez v. State, 87 S.W.3d 648, 653 (Tex. App.—San
Antonio 2002, no pet.).
Here, appellant did not specify where or when he believed he traveled on the
night in question. Rather, the evidence showed he lived near downtown Dallas and
drove to Club Level in Uptown Dallas. He did not present any evidence of the actual
distance between the two locations. However, they were close enough that he drove
back and forth between his home and the club twice because Brandon forgot his I.D.
and then because appellant’s attire violated the club’s dress code. Thus, appellant’s
destination was not “some distance” from his home. Ayesh, 734 S.W.2d at 108; see
also Perez, 87 S.W.3d at 653 (concluding traveler’s exception did not apply when
defendant’s destination was a restaurant less than ten miles from his home). The
court of criminal appeals has instructed that we do not apply the ordinary meaning
of “traveling” as simply going from place to place as “almost every person who goes
from place to place may be considered a traveler.” See Bain v. State, 44 S.W. 518,
518 (Tex. Crim. App. 1898); Gomez v. State, No. 03-07-00050-CR, 2008 WL
1827428, at *12 (Tex. App.—Austin Apr. 24, 2008, no pet.) (mem. op., not
designated for publication) (citing Bain). Considering the evidence in this case,
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appellant was not on a “real journey” entitling him to a traveler’s exception
instruction. Accordingly, its absence from the charge was not error.
Finally, appellant argues the section 9.31(b)(5) limiting instruction “imposed
an unconstitutional limitation on [his] right to protect himself and instead
automatically defeated his right of self-defense.” We construe appellant’s argument
as challenging the constitutionality of the statute. To preserve an issue on appeal,
there must be a timely objection that specifically states the legal basis for the
objection. See TEX. R. APP. P. 33.1(a). A constitutional challenge based on a
statute’s application to a defendant cannot be raised for the first time on appeal. See
Trejo v. State, No. 13-16-00432-CR, 2018 WL 5534107, at *3 (Tex. App.—Corpus
Christi–Edinburg Oct. 25, 2018, pet. ref’d) (mem. op., not designated for
publication). Further, a defendant may not raise for the first time on appeal a facial
challenge to the constitutionality of a statute. See Karenev v. State, 281 S.W.3d 428,
434 (Tex. Crim. App. 2009). Because appellant did not raise his complaint to the
trial court, he is barred from raising it for the first time on appeal. TEX. R. APP. P.
33.1; Trejo, 2018 WL 5534107, at *3; Karenev, 281 S.W.3d at 434. We overrule
appellant’s second issue.
Admission of Photographs
In his third issue, appellant argues the trial court abused its discretion by
admitting multiple photographs depicting Demondre’s wounds and postmortem
appearance because the probative value was substantially outweighed by the danger
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of unfair prejudice. In support of his argument, he argues the cause of death was not
in dispute, and the photographs served no purpose other than to stir the jury’s
emotions and encourage it to reject appellant’s self-defense. The State responds the
trial court properly admitted the photographs because they aided the medical
examiner’s testimony.
Evidence is relevant if it has any tendency to make a fact more or less probable
than it would be without the evidence, and the fact is of consequence in determining
the action. TEX. R. EVID. 401. Relevant evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence. TEX. R. EVID. 403. The balance between
probative value and the potential for prejudice “is always slanted toward admission,
not exclusion, of otherwise relevant evidence.” See De La Paz v. State, 279 S.W.3d
336, 343 (Tex. Crim. App. 2009). We review a trial court’s decision to admit
photographs into evidence for an abuse of discretion. Gallo v. State, 239 S.W.3d
757, 762 (Tex. Crim. App. 2007); Taylor v. State, No. 05-17-01058-CR, 2018 WL
5306991, at *9 (Tex. App.—Dallas Oct. 26, 2018, no pet.) (mem. op., not designated
for publication).
A proper rule 403 analysis includes, but is not limited to, four factors: (1) the
probative value of the evidence; (2) the potential to impress the jury in some
irrational yet indelible way; (3) the time needed to develop the evidence; and (4) the
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proponent’s need for the evidence. See State v. Mechler, 153 S.W.3d 435, 440 (Tex.
Crim. App. 2005). Rule 403 does not require exclusion of all evidence because it is
prejudicial, only evidence that is unfairly prejudicial. See Martinez v. State, 327
S.W.3d 727, 737 (Tex. Crim. App. 2010).
Generally, photographs are admissible if verbal testimony about the matters
depicted in the photographs would be admissible, and their probative value is not
substantially outweighed by rule 403 factors. See Gallo, 239 S.W.3d at 762. A trial
court does not abuse its discretion simply by admitting into evidence a gruesome
photograph. See Sonnier v. State, 913 S.W.2d 511, 519 (Tex. Crim. App. 1995) (en
banc); see also Shavers v. State, 881 S.W.2d 67, 77 (Tex. App.—Dallas 1994, no
pet.) (“The fact that the scene depicted in the photograph is gory and gruesome does
not make the photograph more prejudicial than probative when the crime scene is
gory and gruesome.”).
The State moved to admit exhibits 33 through 50, which were autopsy
photographs. Appellant objected to the photographs because they were more
prejudicial than probative. The court reviewed the photographs and overruled
appellant’s objections.
After reviewing the photographs, we cannot conclude the trial court acted
outside the zone of reasonable disagreement in admitting them. Dr. Townsend-
Parchman used the autopsy photographs to describe Demondre’s injuries to the jury.
Any alleged gruesomeness in the photographs can be attributed to the subject matter
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depicted by the photographs and is no more gruesome than the disturbing reality of
the crime itself. See Johnson v. State, No. 05-15-00640-CR, 2016 WL 6473052, at
*8 (Tex. App.—Dallas Nov. 1, 2016, no pet.) (mem. op., not designated for
publication). Further, a trial court does not err merely because it admits gruesome
photographs into evidence. Guida v. State, No. 05-14-01626-CR, 2016 WL
2905147, at *7 (Tex. App.—Dallas May 13, 2016, pet. ref’d) (mem. op., not
designated for publication).
Dr. Townsend-Parchman used the photographs to explain the likely trajectory
of the bullets and distance from which they were fired. Although appellant argues
the trajectory of the bullets or general ballistics was not disputed because it was
undisputed appellant shot Demondre, we cannot say the trial court acted outside the
zone of reasonable disagreement by allowing the pictures into evidence for the jury
to consider in determining whether appellant acted in self-defense. See, e.g.,
Johnson, 2016 WL 6473052, at *8 (concluding autopsy photographs gave jury a
means of gauging whether defendant’s story was believable or reasonable); see also
Hall v. State, 137 S.W.3d 847, 855 (Tex. App.—Houston [1st Dist.] 2004, pet. ref’d)
(concluding autopsy photographs admissible to demonstrate proximity of wounds
and the trajectories and paths of the bullets despite defendant’s conditional
stipulation he shot victim in self-defense).
Further, a photograph is generally admissible if verbal testimony as to matters
depicted in the photograph is also admissible. See Williams v. State, 958 S.W.2d
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186, 195 (Tex. Crim. App. 1997). In other words, if the verbal testimony is relevant,
photographs of the same are also relevant. Id.; McLemore v. State, No. 05-15-00160-
CR, 2015 WL 9591398, at *3 (Tex. App.—Dallas Dec. 31, 2015, no pet.) (mem. op.,
not designated for publication). Dr. Townsend-Parchman’s testimony about
Demondre’s injuries was relevant, admissible, and did not draw any objections.
Under these circumstances, we conclude the probative value of the photographs is
substantially outweighed by the danger of unfair prejudice. The trial court’s decision
to admit the photographs was within the zone of reasonable disagreement and,
therefore, not an abuse of discretion. We overrule appellant’s third issue.
Police Interview
In his fourth issue, appellant argues the trial court abused its discretion by
allowing the State to reopen its case after appellant testified and admitting into
evidence his police interview with Detective Grubbs because it was improper
“double-down impeachment” and not rebuttal evidence within article 36.01(a)(7) of
the code of criminal procedure. See TEX. CODE CRIM. PROC. ANN. art. 36.01(a)(7)
(noting order of trial proceedings). The State responds the interview was not barred
because it was admitted against appellant as extrinsic evidence of his prior
inconsistent statements. See TEX. RS. EVID. 613(a)(4), (5) (stating extrinsic evidence
of a witness’s prior inconsistent statement is not admissible unless the witness is first
examined about the statement and fails to unequivocally admit making the statement,
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but subdivision (a) does not apply to an opposing party’s statement under rule
801(e)(2)).
The relevant facts are as follows. During appellant’s direct examination, he
claimed he heard Demondre say get the A.R., and he saw Demondre with a gun. On
cross-examination, the State asked appellant about his interview with Detective
Grubbs. Defense counsel objected, and the trial court held a hearing outside the
jury’s presence. During that hearing, appellant testified that he told Detective
Grubbs he heard someone make a threat about an A.R. and saw Demondre with a
gun. The State then played his videotaped interview. After watching his interview,
appellant admitted he did not tell Detective Grubbs anything about an A.R., and
when Detective Grubbs asked if he saw a gun, appellant answered no. Back in the
presence of the jury, appellant admitted he did not mention in his interview anything
about an A.R. or a gun.
After the defense rested, the State reopened its case and called Detective
Grubbs as a rebuttal witness. The State then introduced appellant’s police interview
into evidence, and appellant objected as improper impeachment. The trial court
overruled the objection. The State played the videotaped interview for the jury, and
then the State continued questioning Detective Grubbs without any further objection.
Detective Grubbs testified appellant said he did not see a gun. He also testified
appellant never mentioned during the interview anyone threatening him or having
an A.R.
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We agree with appellant that the videotaped interview is not proper
impeachment evidence of a prior inconsistent statement under the facts of this case.
If a witness denies making a prior statement, then extrinsic evidence of the prior
inconsistent statement may be offered. See TEX. R. EVID. 613(a)(4) (“[e]xtrinsic
evidence of a witness’s prior inconsistent statement is not admissible unless the
witness is first examined about the statement and fails to unequivocally admit
making the statement”); see also Maldonado v. State, No. 05-16-01457-CR, 2018
WL 833372, at *3 (Tex. App.—Dallas Feb. 13, 2018, no pet.) (mem. op., not
designated for publication). Here, appellant unequivocally admitted before the jury
to not telling Detective Grubbs anything about weapons. Thus, the trial court abused
its discretion by admitting this extrinsic evidence.
A trial court’s error in the admission of evidence is reviewed for non-
constitutional error. Delgado v. State, 635 S.W.3d 630, 754 (Tex. App.—Dallas
2021, pet. ref’d). Improper admission of evidence does not constitute reversible
error if the same or similar facts are proved by other properly admitted evidence.
Hayes v. State, No. 05-16-00740-CR, 2017 WL 5663612, at *8 (Tex. App.—Dallas
Nov. 27, 2017, pet. ref’d) (mem. op., not designated for publication). In other words,
“error in the admission of evidence may be rendered harmless when substantially
the same evidence is admitted elsewhere without objection.” Id. (quoting Mayes v.
State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991) (en banc)). Because Detective
Grubb’s testimony, which was substantially the same as the videotaped interview,
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came in without objection, the admission of the videotaped interview was harmless.
Appellant’s fourth issue is overruled.
Modification of Judgment
In a cross-point, the State requests modification of the judgment to reflect that
appellant pleaded “Not Guilty” and to reflect the jury’s affirmative deadly weapon
finding.
When the record provides the necessary information to correct inaccuracies in
the trial court’s judgment, we have the authority to reform the judgment to speak the
truth. TEX. R. APP. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.
App. 1993) (courts of appeals have authority to modify a judgment); Asberry v.
State, 813 S.W.2d 526, 529–30 (Tex. App.—Dallas 1991, pet. ref’d).
The record confirms that appellant pleaded not guilty after the trial court read
the indictment. Because the record unambiguously establishes that appellant
pleaded not guilty to the charged offense, we replace “Guilty” with “Not Guilty” in
the “Plea to the Offense:” portion of the judgment. See TEX. R. APP. P. 43.2(b);
Bigley, 865 S.W.2d at 27–28; Asberry, 813 S.W.2d at 529–30.
We likewise conclude that the record supports the jury’s affirmative deadly
weapon finding. The indictment alleged two alternate theories of murder: (1)
appellant intentionally and knowingly caused the death of Demondre by shooting
him with a firearm, a deadly weapon; and (2) appellant intended to cause serious
bodily injury to Demondre and committed an act clearly dangerous to human life by
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shooting him with a firearm, a deadly weapon, causing his death. The jury found
appellant guilty of the offense of murder “as charged in the indictment.” Because
the jury implicitly found that appellant used a deadly weapon in committing the
offense when it found appellant guilty of the offense of murder as charged in the
indictment, we modify the judgment to delete “N/A” and replace with “YES, A
FIREARM” in the space designated for “Findings on Deadly Weapon:.” See, e.g.,
Stiggers v. State, No. 05-97-01373-CR, 2000 WL 150851, at *2 (Tex. App.—Dallas
Feb. 14, 2000, no pet.) (not designated for publication). We sustain the State’s cross-
point.
Conclusion
As modified, the judgment of the trial court is affirmed.
/Craig Smith/
CRAIG SMITH
JUSTICE
Do Not Publish
TEX. R. APP. P. 47.2(b)
200100F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHRISTOPHER ROMMELL On Appeal from the 194th Judicial
MCKINNEY, Appellant District Court, Dallas County, Texas
Trial Court Cause No. F-1975306-M.
No. 05-20-00100-CR V. Opinion delivered by Justice Smith.
Justices Schenck and Osborne
THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is
MODIFIED as follows:
We DELETE “N/A” and REPLACE with “YES, A FIREARM” for
“Findings on Deadly Weapon.”
We DELETE “GUILTY” and REPLACE with “NOT GUILTY” for
“Plea to the Offense.”
As MODIFIED, the judgment is AFFIRMED.
Judgment entered July 11, 2022
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