Kenneth Earl Thomas, Jr. v. the State of Texas

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-21-00138-CR
KENNETH EARL THOMAS, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th District Court
Gregg County, Texas
Trial Court No. 49503-B
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Justice van Cleef
MEMORANDUM OPINION
A Gregg County jury convicted Kenneth Earl Thomas, Jr., of the murder of Kimberly
Wallace and assessed a sentence of life imprisonment. On appeal, Thomas argues that (1) the
trial court should have suppressed his recorded confession, (2) testimony from a firearms expert
should have been excluded, (3) language in the jury charge constituted a comment on the weight
of the evidence that compromised his right to remain silent, and (4) admission of gruesome
autopsy photographs was erroneous.
We determine that the trial court did not err either by failing to suppress Thomas’s
recorded confession or by admitting ballistics evidence. We further find that Thomas’s jury
charge complaint is inadequately briefed and that he has failed to preserve his last point of error.
As a result, we affirm the trial court’s judgment.
I. Factual Background
Thomas and Wallace had been in a relationship for approximately seven years and had a
four-year-old daughter, Kate.1 The evidence at trial established that they were not living together
and that their relationship was tumultuous. Charenda Jean Nevill, the public safety
communication administrator for the Longview Police Department (LPD), testified that there
were emergency calls involving the couple on June 6, 2018, and on March 30, June 20, July 6,
and July 8, 2019. On July 26, 2019, two days before Wallace’s murder, police were dispatched
to an assault in progress. According to David Cheatham, the responding LPD officer, Wallace
1
We will use pseudonyms to protect the identity of “any person who was a minor at the time the offense was
committed.” TEX. R. APP. P. 9.10(a)(3).
2
was crying, “her hair [wa]s in disarray,” she had scratch marks on her body, and her cheek was
swollen from what Cheatham believed was a slap to the face.
On July 27, Wallace’s cousin, Shelita Medford, testified that she went out to eat with
Wallace, Kate, and Wallace’s teenaged children from another man, Jasmine and Jack. They
stayed at the restaurant until 11:00 p.m., after which Medford returned home. That night,
Wallace’s friend Patrick Nigel Williams drove to Wallace’s house for a visit, but Wallace
believed it was too late to let him in. With Wallace’s permission, Williams sat in his car outside
of her home and smoked marihuana.
At approximately 2:15 a.m. on July 28, Williams asked Wallace for help to jump his car
because it would not start. Wallace agreed, pulled her car up to his, and popped the hood. As
Williams was in the process of jump starting his car in the dark, he heard what he initially
believed was a “gasket . . . blowing under [his] hood.” Williams went to investigate, saw
Wallace lying on the ground, and concluded that she had been shot.2 Williams saw someone
leaving the scene toward an apartment complex but could not identify who had shot Williams
since it was pitch dark. Scared and crying, he banged on Wallace’s front door to inform Jasmine
of what had happened and told her to call the police. Jasmine’s frantic 9-1-1 call was played for
the jury.
LPD Lieutenant Charles Ryan Rocket appeared at the scene to find Wallace lying in the
road in a large pool of blood between two cars. Dusty Paul Seay, an LPD sergeant, collected six
shell casings at the scene. According to Armando Juarezortega, an LPD detective, Jack reported
2
Wallace’s neighbors, Earnest and Tonia McNeary, said they heard gunshots at around 3:15 a.m.
3
that Thomas might have committed the crime. After speaking with Thomas’s friend John Lewis
Bean, Juarezortega believed Thomas was the proper suspect.
Bean testified that he and Thomas became acquainted after they both served time in jail.
After their release, they each rented an apartment at the Courtyard Apartments in Longview,
Texas. Bean said that Thomas called him on the day of the murder at 6:00 or 7:00 a.m. and
offered him twenty dollars if Bean would pick him up from the Days Inn hotel. Bean accepted
and dropped Thomas off at the intersection of El Paso and Lilly Streets, near Broughton Park.
That afternoon, Thomas asked Bean to go to his apartment to retrieve his clothes, but Bean
refused because Thomas “explained to [Bean] what he had done.” According to Bean, Thomas
said, “I can’t go back to my apartment because they [are] looking for me. I did it. . . . I killed her
last night.” Bean assumed that Thomas was referring to Wallace. He added that he had seen
Thomas in possession of a beige-colored gun before the shooting.
Kirby Deloach, an LPD officer, testified that they collected the weapon from Thomas
after an officer-involved shooting at Broughton Park. Juarezortega testified that Thomas “took
off running” as he and other officers tried to arrest him, and then Thomas “started firing at
[officers],” who “returned fire.” Juarezortega said that “there were a lot of shots that were fired
by Mr. Thomas” and that he could “hear the bullets passing close by.” Thomas yielded when he
was shot in the buttocks by an officer, and his tan .40 caliber Taurus was collected as evidence.
After his arrest, Thomas was admitted to Good Shepherd Medical Center at 9:49 p.m. for
treatment due to his gunshot wound, was administered 50 micrograms of fentanyl at 10:29 p.m.,
was discharged at 11:58 p.m., and was released to police custody. After a custodial
4
interrogation, which began immediately after his release from the hospital, Thomas was booked
into the Gregg County Jail.
According to Ashley Christina Hukill, one of the jailers who was with Thomas, Thomas
said, during the booking process, “Yeah, I did what I did.” Thomas made similar statements in
recorded jailhouse calls. In the first call to an unidentified woman, Thomas again said, “I did
what I done” and asked the woman to tell Kate when she was older that it was because “her
mama was not right in trying to keep [him] from her.” In another call to an unidentified man,
Thomas said he was “going out with a blaze” and that the only thing he “hate[d]” was that he
“didn’t get that nigga too.” Thomas added, “I don’t know who that nigga was that was there. . . .
He looked me dead in the eyes and took off running.” While making gunshot noises, Thomas
said, “I lit that bitch up.”
Devon Fuller, a deputy at the jail, testified that Thomas wanted to show Fuller a song he
wrote about his case. Fuller said that Thomas had a piece of paper with lyrics on it, which he
photographed. The photograph, which was admitted into evidence without objection, showed
that the title of the song was “I got murder on my mind.” Fuller said that Thomas rapped the
following lyrics from the paper:
8 SHOTS TO DAT HOE HEAD BUST HER BRAIN
NOW IM FACEIN ME A LIFE SENTENCE IN DIS BITCH
I AINT TRIPPIN ON IT THO DAWG I DNT GIVE A SHIT
THE ONLY THING THAT I HATE I DIDN’T GET DAT NIGGA
....
SHE SHOULDN’T NEVER USE MY DAUGHTER IN THE BEGINNING YALL
....
LUCKY THE LAWS GOT ME OR DAT NIGGA HE’LL BE DEAD . . . .
5
Erin Carney, M.D., a forensic pathologist, performed Wallace’s autopsy. She testified
that Wallace had gunshot wounds on her left occipital scalp, the back of her head, and the left
side of her chest and that another bullet had grazed her left arm. According to Carney, because
there was no evidence of a close-range shot, the weapon must have been fired from a distant or
intermediate range. To document her findings, Carney took photos during the autopsy that were
shown to the jury.
Nathan Tunnel, a firearms and toolmarks examiner at the Texas Department of Public
Safety Crime Laboratory in Tyler, testified that he analyzed bullets retrieved from Wallace’s
body during Carney’s autopsy and compared them with the Taurus collected from Thomas.
According to Tunnel, “[T]wo bullets were identified as having been fired from the Taurus
pistol. . . . And then two remaining bullets were inconclusive.” Tunnel’s conclusions were
reviewed and verified by another examiner.
After hearing this evidence and watching Thomas’s custodial interrogation, the jury
convicted Thomas of Wallace’s murder.
II. The Trial Court Did Not Err by Failing to Suppress Thomas’s Recorded Confession
At a pretrial hearing, counsel moved to suppress the recorded statement on the ground
that it was involuntary because Thomas was under the influence of pain medication administered
by the hospital to treat injuries he received during “a gun battle with the police.” In his first
point of error on appeal, Thomas argues that the trial court erred by failing to suppress his
recorded confession. We disagree.
6
A. Thomas Moves to Suppress the Recorded Confession
Thomas did not secure a pretrial ruling on his motion to suppress. At trial, it was
undisputed that Thomas received a 50-microgram dose of fentanyl, which Carney believed could
affect someone for at least two to three hours. Carney classified fentanyl as an artificial opiate
depressant that could compromise the ability to think and reason. Although Carney could not
say whether the drug would affect someone’s ability to provide informed consent, she testified
that she would be reluctant to take informed consent from someone under the influence of drugs.
Dustin Ashworth, an LPD detective, testified that he conducted a recorded interview of
Thomas on July 28 after reading Thomas his Miranda3 rights. As Ashworth was about to discuss
the interview, Thomas objected and argued that the confession should be excluded because “[t]he
State ha[d] not complied with Article 38.22, Section 3,” which required a knowing, intelligent,
and voluntary waiver of rights. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 3(a)(2).
Alternatively, Thomas requested that the jury be allowed to watch the entirety of the recorded
confession to determine whether Thomas’s waivers were voluntary.
Ashworth testified that Thomas admitted to shooting Wallace. After that testimony, the
confession was shown to the jury. The recording showed that Thomas was brought into the
interrogation room, where he lay on the floor while waiting for Ashworth to arrive. When
Ashworth came into the room, Thomas asked if he could remain on the floor. Ashworth
acknowledged that Thomas had more pain while sitting and allowed him to stay on the floor
during questioning. Yet, when asked if he was administered pain medication, Thomas
3
See Miranda v. Arizona, 384 U.S. 436 (1966).
7
responded, “I don’t think so.” He then read Thomas his Miranda rights, which Thomas waived.
On the recording, Thomas appeared to initially answer questions coherently. Yet, he appeared to
ramble at points and had difficulty finishing sentences, which could have been because he was in
pain, was exhausted, or—as Thomas suggested—was under the influence of fentanyl.
When asked about the shooting, Thomas acknowledged that he was incriminating
himself. Ashworth told Thomas that they already had evidence suggesting that he was the
perpetrator and just wanted to hear his side of the story. Indicating his understanding of the
consequences of his actions, Thomas said, before giving his confession, “I’m dead anyway.
They’re fixing to hang me.” He explained that he was deeply upset because Wallace would not
allow him to talk to Kate and became angry when he learned that Kate was allowed to be around
another man. Thomas told Ashworth that he took a cab to Wallace’s house, saw Williams raise
his car hood after his car would not start, witnessed Wallace drive her car up to Williams’s, and
watched as she stepped out of the vehicle. Thomas admitted that he walked up to the scene and
indicated that he shot Wallace by saying, “[P]ow, pow, pow, pow.” Thomas said that Williams
did not see or hear him but took off running. After the shooting, Thomas testified that he walked
away and called a cab, went to a Days Inn, and called Bean.
After the confession, the video showed that Thomas began bleeding from his wound.
When Ashworth exited the room, Thomas urinated into a cup and appeared to be asleep on the
floor. Because Carney had testified that she would be concerned that a person was “altered” if
engaged in conversation while lying down on the floor or urinating in the room, Thomas argued
that his conduct during the interview suggested that he was still under the influence of fentanyl.
8
Yet, Ashworth testified that, while Thomas was in distress from pain, his speech was not slurred,
and he appeared normal to Ashworth.
B. Applicable Law Related to Thomas’s Request and the Standard of Review
“A statement of an accused may be used in evidence against him if it appears that the
same was freely and voluntarily made without compulsion or persuasion.” Douglas v. State, 489
S.W.3d 613, 631 (Tex. App.—Texarkana 2016, no pet.) (quoting TEX. CODE CRIM. PROC. ANN.
art. 38.21). “When the defendant challenges the voluntariness of his statement, ‘the trial court
must make an independent determination in the absence of the jury as to whether the statement
was voluntarily made.’” Id. (quoting Simpson v. State, 67 S.W.3d 327, 332 (Tex. App.—
Texarkana 2001, no pet.)).
A question of voluntariness is raised, as it was here, when it is litigated in some manner
at trial. Oursbourn v. State, 259 S.W.3d 159, 176 (Tex. Crim. App. 2008). “A defendant may
claim that his statement was not freely and voluntarily made and thus may not be used as
evidence against him under several different theories: (1) Article 38.22, § 6—general
voluntariness; (2) Miranda v. Arizona as expanded in Article 38.22, §§ 2 and 3 (the Texas
Confession statute); or (3) the Due Process Clause.” Id. at 169 (footnotes omitted) (citations
omitted).
Thomas’s briefing cites the Due Process Clause. “Under the Fifth and Fourteenth
Amendments, it is the State’s burden to prove by a preponderance of the evidence that the
statement was voluntary.” Douglas, 489 S.W.3d at 631 (citing Simpson, 67 S.W.3d at 332; Lego
v. Twomey, 404 U.S. 477, 489 (1972); Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App.
9
1995)). However, “[a] statement is considered involuntary under the Due Process Clause ‘only if
there was official, coercive conduct of such a nature that any statement obtained thereby was
unlikely to have been the product of an essentially free and unconstrained choice.’” Id. (quoting
Alvarado, 912 S.W.2d at 211). “Due process claims of involuntariness involve ‘an objective
assessment of police behavior.’” Id. (quoting Oursbourn, 259 S.W.3d at 171). “If the
voluntariness claim is based on the defendant’s state of mind, that is left to state law
requirements.” Id. (citing Oursbourn, 259 S.W.3d at 171). Because Thomas’s arguments
question only his state of mind as the result of the administration of fentanyl, and not police
conduct, we turn to state law requirements.
In relevant part, Article 38.22 states:
Sec. 3. (a) No oral or sign language statement of an accused made as a result
of custodial interrogation shall be admissible against the accused in a criminal
proceeding unless:
....
(2) prior to the statement but during the recording the accused is given
the [proper] warning[s] . . . and the accused knowingly, intelligently, and
voluntarily waives any rights set out in the warning;
....
Sec. 6. In all cases where a question is raised as to the voluntariness of a
statement of an accused, the court must make an independent finding in the
absence of the jury as to whether the statement was made under voluntary
conditions. If the statement has been found to have been voluntarily made and
held admissible as a matter of law and fact by the court in a hearing in the absence
of the jury, the court must enter an order stating its conclusion as to whether or
not the statement was voluntarily made . . . . Upon the finding by the judge as a
matter of law and fact that the statement was voluntarily made, evidence
pertaining to such matter may be submitted to the jury and it shall be instructed
that unless the jury believes beyond a reasonable doubt that the statement was
10
voluntarily made, the jury shall not consider such statement for any purpose nor
any evidence obtained as a result thereof.
TEX. CODE CRIM. PROC. ANN. art. 38.22. The Texas Court of Criminal Appeals has stated that
the sequence of events contemplated by Section 6 is as follows:
(1) a party notifies the trial judge that there is an issue about the voluntariness
of the confession (or the trial judge raises the issue on his own);
(2) the trial judge holds a hearing outside the presence of the jury;
(3) the trial judge decides whether the confession was voluntary;
(4) if the trial judge decides that the confession was voluntary, it will be
admitted, and a party may offer evidence before the jury suggesting that the
confession was not in fact voluntary;
(5) if such evidence is offered before the jury, the trial judge shall give the
jury a voluntariness instruction.
Oursbourn, 259 S.W.3d at 175.
With respect to step three, of which Thomas complains, “the trial court is the ‘sole and
exclusive trier of fact and judge of the credibility of the witness’ and the evidence presented.”
Douglas, 489 S.W.3d at 631 (quoting Delao v. State, 235 S.W.3d 235, 238 (Tex. Crim. App.
2007) (quoting Green v. State, 934 S.W.2d 92, 98 (Tex. Crim. App. 1996)). “[A] confession
given under the duress of . . . medications . . . could be involuntary.” Id. at 632 (citing
Oursbourn, 259 S.W.3d at 172). While evidence that a person was under the influence of drugs
or medication is relevant, it “do[es] not make the statement involuntary unless [it] ‘rendered [the
maker] incapable of making an independent, informed decision to confess.’” Id. (quoting Jones
v. State, 944 S.W.2d 642, 651 (Tex. Crim. App. 1996)). “We evaluate whether the statement
11
was voluntary by examining the totality of the circumstances.” Id. (citing Delao, 235 S.W.3d at
239).
When reviewing a motion to suppress, we give “almost total deference to the trial court’s
determination of historical facts that turn on credibility and demeanor.” Cochran v. State, 563
S.W.3d 374, 378 (Tex. App.—Texarkana 2018, no pet.). Because this is such an issue, “[w]e
view the record and all reasonable inferences drawn from it in the light most favorable to the trial
court’s ruling.” Douglas, 489 S.W.3d at 631. Where, as here, “the trial court did not make
findings of fact, we will assume the trial court made implicit findings that support its ruling, as
long as they are supported by the record.” Id. (citing Torres v. State, 182 S.W.3d 899, 902 (Tex.
Crim. App. 2005)).
C. The Decision to Overrule Thomas’s Suppression Motion Was Proper
Even assuming that Thomas was under the influence of fentanyl during Ashworth’s
questioning, that “fact alone is not . . . sufficient to render his confession involuntary.” See
Garcia v. State, 919 S.W.2d 370, 387 (Tex. Crim. App. 1994) (per curiam) (op. on reh’g); see
also King v. State, 585 S.W.2d 720 (Tex. Crim. App. [Panel Op.] 1979) (holding that heroin
taken on the day of confessing did not render confession involuntary); Saldana v. State, 59
S.W.3d 703, 712 (Tex. App.—Austin 2001, pet. ref’d) (holding trial court did not abuse its
discretion in admitting recorded confession when the blood test revealed that appellant had
ingested .3 milligrams of cocaine even though appellant told police he was “not in [his] right
mind” because he took “a lot of drugs and . . . had been drinking”); Pace v. State, 986 S.W.2d
740 (Tex. App.—El Paso 1999, pet. ref’d) (holding confession not involuntary even though
12
defendant’s blood alcohol level was at .16 at time of arrest). This is because, in spite of
Thomas’s alleged intoxication, the trial court could have determined that he was still capable of
making an independent, informed decision to confess. See Jones v. State, 944 S.W.2d 642, 651
(Tex. Crim. App. 1996).
The record supported the conclusion that Thomas was lying on the ground because he
had been shot in the buttocks. The trial court could have easily determined that what Thomas
argued were signs of intoxication were merely signs of pain or exhaustion. Viewing the
recording in the light most favorable to the trial court’s implied findings, Thomas appeared to
understand and waive his Miranda rights, answered Ashworth’s questioning coherently,
described the events of each day of the week leading up to the offense in chronological detail,
and provided his explanation for Wallace’s murder. Before confessing, Thomas pressed
Ashworth to reveal what evidence LPD had gathered against him. Importantly, Thomas
acknowledged both that he was incriminating himself prior to giving his confession and that he
understood the consequences and seriousness of his actions by expressing that he was “dead
anyway.”4 Giving the trial court the appropriate deference afforded in its determination of
historical facts, we cannot conclude that the trial court erred by finding Thomas’s confession
voluntary.
Moreover, ample evidence would have supported the jury’s verdict of guilt in the absence
of Thomas’s confession. The jury heard that police officers had responded to six emergency
4
The trial court could have also determined that Thomas’s decision to urinate into a cup after giving his confession
while left alone in the interrogation room for several minutes was not so unreasonable as to suggest that he lacked
his typical mental faculties. The recording shows that Thomas had been previously left alone in the room for a
considerable amount of time, that he muttered to himself that he just could not “hold it” anymore, and that he
apologized for the emergency act when Ashworth returned to the room.
13
calls involving Wallace and Thomas from June 2018 to the date of the murder. Two days before
the murder, Cheatham testified that Wallace had been assaulted. Before Thomas’s recorded
confession was admitted, Bean testified that Thomas confessed to killing a woman, whom Bean
assumed was Wallace. They jury also heard evidence that bullets from the gun retrieved from
Thomas after the officer-involved shooting matched the bullets gathered from Wallace’s body
during her autopsy. In jailhouse calls, Thomas made gun noises while describing the shooting
and attempted to justify his acts by stating that Wallace was trying to keep Kate from him.
Finally, the jury reviewed the lyrics of Thomas’s song, titled “I got murder on my mind,” which
described how Thomas shot Wallace and his reason for doing so.
For all the foregoing reasons, we overrule Thomas’s first point of error.
III. The Trial Court Did Not Err by Admitting Ballistics Evidence
In his second point of error, Thomas argues that the trial court should have excluded
Tunnel’s testimony because the scientific evidence offered by Tunnel was not reliable. After
reviewing this record, we conclude that the trial court’s decision to admit Tunnel’s testimony
was not an abuse of discretion.
A. Thomas Objected to the Reliability of Tunnel’s Methodology
After providing his educational background and qualifications, Tunnel testified that he
had been qualified as an expert witness in the field of ballistics over forty times. In explaining
his methodology, Tunnel testified as follows:
During the manufacturing process of a firearm, you get unique characteristics
onto that firearm that’s just been individualized to that firearm. And then when
we are making identifications, we’re making opinion statements based on the
level of agreement between those reproduced characteristics that are found
14
throughout the life of the firearm, assuming it hasn’t been changed in some way.
You’re making statements about the reproducibility and the way that those
patterns match.
....
During the actual manufacture process, you get microscopic impurities in the
metal that, through the course of manufacture, they remain with that firearm, so
that from then on, the harder metal -- as it fires a cartridge, the harder metal of the
firearm creates marks in the softer metal of the ammunition components. And
that’s where you get the reproduced pattern. So it would be similar to
fingerprints.
During voir dire, Tunnel testified that he would be making “an opinion based on [his] training
and experience.” He clarified that there was no statistical model to apply to his result and no
“statistical probability along with [his] opinion.” Prior to Tunnel’s ballistics testimony, Thomas
made the following objection: “It doesn’t meet the requirements of expert testimony, as to
scientific evidence. It’s not reproducible, doesn’t have a statistical model that can predict an
error rate, and it’s nothing more than conjecture.” The trial court overruled Thomas’s objection
after noting that Tunnel’s “field is recognized.”
B. Admitting Tunnel’s Testimony Was Not an Abuse of Discretion
“The admission of expert testimony is reviewed on appeal for an abuse of discretion.”
Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim. App. 2010). An “expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion or otherwise if the
expert’s scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” TEX. R. EVID. 702. “[A] trial court’s
responsibility under . . . [Rule] 702 is to determine whether proffered scientific evidence is
15
sufficiently reliable and relevant to assist the jury.” Jackson v. State, 17 S.W.3d 664, 670 (Tex.
Crim. App. 2000) (citing Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992)).
“The proponent of the scientific evidence bears the burden of demonstrating by clear and
convincing evidence that the evidence is reliable.” Id. “This is accomplished by showing:
(1) the validity of the underlying scientific theory; (2) the validity of the technique applying the
theory; and (3) proper application of the technique on the occasion in question.” Id. (citing
Kelly, 824 S.W.2d at 573). Non-exclusive factors that might influence a trial court’s
determination of reliability include:
(1) the extent to which the underlying scientific theory and technique are accepted
as valid by the relevant scientific community, if such community can be
ascertained, (2) the existence of literature supporting or rejecting the underlying
scientific theory and technique, (3) the clarity with which the underlying scientific
theory and technique can be explained to the court, (4) the potential rate of error
of the technique, (5) the availability of other experts to test and evaluate the
technique, (6) the qualifications of the expert(s) testifying, and (7) the experience
and skill of the person(s) who applied the technique on the occasion in question.
Sexton v. State, 93 S.W.3d 96, 100 (Tex. Crim. App. 2002).
“[T]oolmark theory for the identification of fired bullets enjoys widespread acceptance.”
Id. Tunnel testified that there were “several different studies” supporting his methodology and
explained the underlying scientific theory and technique with clarity.5 When asked about his
personal error rate and the error rate of the field, Tunnel responded, “For me personally for my
proficiency test, it’s a zero percent error rate. And the field as a whole, there are several
5
Although not specifically identified at trial, such literature has been referenced by Texas courts. See Sexton, 93
S.W.3d at 100 (citing VINCENT DIMAIO, GUNSHOT WOUNDS: PRACTICAL ASPECTS OF FIREARMS, BALLISTICS AND
FORENSIC TECHNIQUES 31 (1st ed. 1992); J.S. HATCHER ET AL., FIREARMS INVESTIGATION IDENTIFICATION AND
EVIDENCE 310 (1957) (revision of Hatcher’s Textbook of Firearms Investigation, Identification, and Evidence,
published in 1935)).
16
different studies where they have calculated the error rates.”6 Tunnel also testified that his
results were independently verified by another examiner. As for his qualifications, Tunnel
showed that he was employed as a forensic scientist with the TDPS Crime Laboratory since
2010, was a member of the Association of Firearm and Tool Mark Examiners (AFTE) since
2011, had testified as an expert witness in his field over forty times since 2012, had published an
article in the AFTE journal titled “Firing Cartridge Cases in Seemingly Inoperable Handguns: A
Course of Logic,” attended many training courses, and underwent annual proficiency testing.
During direct examination, Tunnel also showed that he had correctly applied the toolmark theory
of identification using the bullets retrieved from Wallace’s autopsy and the Taurus recovered
from Thomas.
Based on this record, we conclude that the trial court did not abuse its discretion by
determining that Tunnel’s expert testimony was reliable and should be admitted.7 Consequently,
we overrule Thomas’s second point of error.
IV. Thomas’s Jury Charge Complaint is Inadequately Briefed
Next, Thomas complains of one sentence contained in the trial court’s jury charge. The
charge contained the following instruction under the heading “Evidence of Prior Convictions by
Defendant”:
You are further instructed that certain evidence was admitted in evidence before
you in regard to the Defendant’s having been charged and convicted of offenses
other than the one for which he is now on trial. Such evidence cannot be
considered by you against the Defendant as any evidence of guilt in this case.
6
Tunnel was not asked to clarify the error rates discussed in those studies.
7
Also, in light of the evidence of Thomas’s guilt recited above, we fail to see how Thomas could have been harmed
by the admission of Tunnel’s testimony.
17
You may only consider the said evidence in determining the credibility of the
Defendant and for no other purpose.
(Emphasis added). At the charge conference, Thomas objected to the italicized sentence on the
ground that his credibility was not at issue because he did not testify. The trial court noted that
the jury had heard Thomas’s recorded confession, which included information about his prior
convictions, and found that the italicized sentence was necessary to prevent the jury from
considering prior convictions for all purposes. As a result, the trial court overruled Thomas’s
objection and submitted the limited instruction.
On appeal, Thomas argues that the trial court’s italicized sentence constituted a comment
on the weight of the evidence “[t]hat [ran] counter to the Fifth Amendment right and counter to
the trial court’s opposite instruction in the charge of the defendant’s right to remain silent.”8
Other than these conclusory statements, Thomas provided no substantive analysis and cited no
applicable authority in support of the statements.
To avoid forfeiting a legal argument for inadequate briefing, an appellant’s brief must
contain “a clear and concise argument for the contentions made, with appropriate citations to
authorities and to the record.” Taylor v. State, 558 S.W.3d 215, 218 (Tex. App.—Texarkana
2018, no pet.) (quoting TEX. R. APP. P. 38.1(i)). Thomas’s brief fails to explain how or why the
trial court’s limiting instruction constituted a comment on the weight of the evidence and how
8
Under the heading “Defendant’s Right to Remain Silent,” the trial court submitted the following instruction:
The defendant has a constitutional right to remain silent. The defendant may testify on his own
behalf. The defendant may also choose not to testify. The defendant’s decision not to testify
cannot be held against him and it is not evidence of guilt. You must not speculate, guess, or even
talk about what the defendant might have said if he had taken the witness stand or why he did not.
The foreperson of the jury must immediately stop any juror from mentioning the defendant’s
decision not to testify.
18
the instruction impacted his right to remain silent. He has also failed to provide any applicable
caselaw where a comment on the weight of the evidence was deemed to have impacted a
defendant’s right to remain silent. “Because the Texas Court of Criminal Appeals has
emphasized that an appellate court has no obligation to construct and compose issues, facts, and
arguments for an appellant, encompassed within Rule 38.1 is the party’s task of explaining or
discussing why an argument has substance.” Id. (citing Wolfe v. State, 509 S.W.3d 325, 343
(Tex. Crim. App. 2017)). As a result, this Court will not create Thomas’s argument for him.
In addition, an issue is inadequately briefed when an “appellant does not address the
question of whether the alleged error . . . was harmless.” Cardenas v. State, 30 S.W.3d 384, 393
(Tex. Crim. App. 2000). Although Thomas set forth the standard for analyzing harm caused by
jury-charge error, he provided no harm analysis other than a conclusory statement that the harm
was egregious. Such a conclusory statement failed to show how Thomas was harmed by the
italicized sentence in light of the overwhelming evidence of guilt recited above.
“To avoid forfeiture, a party must provide substantive analysis by applying the law to the
facts.” Taylor, 558 S.W.3d at 218. “A brief that fails to apply the law to the facts does not
comply with Rule 38.1 and presents nothing for review.” Id. (citing Swearingen v. State, 101
S.W.3d 89, 100 (Tex. Crim. App. 2003)). We overrule Thomas’s third point of error because we
find it inadequately briefed.
V. Thomas Failed to Preserve His Last Point of Error
Next, after Carney testified about the injuries she discovered during Wallace’s autopsy,
the State proffered Exhibit 34, a dvd containing multiple autopsy photographs. Thomas argues
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that the trial court erred (1) by admitting the gruesome autopsy photographs and (1) by
overruling his global relevance objection because some of the autopsy photographs were
irrelevant. We conclude that none of Thomas’s complaints are preserved for our review.
A. Thomas Raised No Argument About Gruesomeness or Unfair Prejudice at
Trial
When the State proffered Exhibit 34, Thomas immediately asked the trial court to
approach the bench. Although there is no record of Thomas’s objection at the bench, the trial
court overruled an objection to the photographs after finding “that they [were] not cumulative,
[and] that they [were] relevant.” On appeal, Thomas discusses certain photographs contained
within the exhibit and argues that those specific photographs were gruesome and should have
been excluded because they were unfairly prejudicial and introduced merely to inflame the
passions of the jury. The State argues that Thomas’s appellate argument does not comport with
his objection at trial. We agree.
A “point of error on appeal must comport with the objection made at trial.” Wilson v.
State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002); see Swain v. State, 181 S.W.3d 359, 368
(Tex. Crim. App. 2005). As stated in Resendez v. State, 306 S.W.3d 308 (Tex. Crim. App.
2009),
Rule 33.1(a) of the Texas Rules of Appellate Procedure provides that a complaint
is not preserved for appeal unless it was made to the trial court “by a timely
request, objection or motion” that “stated the grounds for the ruling that the
complaining party sought from the trial court with sufficient specificity to make
the trial court aware of the complaint, unless the specific grounds were apparent
from the context.”
Id. at 312 (quoting TEX. R. APP. P. 33.1(a)(1)(A)).
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“The purpose of requiring a specific objection in the trial court is twofold: (1) to inform
the trial judge of the basis of the objection and give him the opportunity to rule on it; [and] (2) to
give opposing counsel the opportunity to respond to the complaint.” Id. As explained in
Resendez,
Although there are no technical considerations or forms of words required to
preserve an error for appeal, a party must be specific enough so as to “let the trial
judge know what he wants, why he thinks himself entitled to it, and do so clearly
enough for the judge to understand him at a time when the trial court is in a
proper position to do something about it.”
Id. at 312–13 (quoting Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992)).
Thomas complains of the gruesomeness of the autopsy photographs and argues that, as a
result, their probative value was outweighed by the danger of unfair prejudice. Yet, the record
does not show that Thomas objected to the gruesomeness of the photographs or any resulting
unfair prejudice.9 Instead, Thomas complained only of the relevance and cumulative nature of
the autopsy photographs. As a result, Thomas’s argument on appeal does not comport with his
complaint at trial. Because a reviewing court should not address the merits of an issue that has
not been preserved for appeal, we overrule Thomas’s complaints about the alleged gruesomeness
of and unfair prejudice resulting from certain autopsy photographs. See Ford v. State, 305
S.W.3d 530, 532 (Tex. Crim. App. 2009).
9
See Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007) (It is the “appellant’s burden to bring forward a
record on appeal sufficient to show that the trial court erred.”).
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B. Thomas’s Global Objection Did Not Preserve a Complaint About Specific
Photographs
Autopsy photographs illustrate the results of an examination of the body, are relevant to
the manner of death, and are “highly probative to show the full extent of the injuries appellant
inflicted on the victim.” Gallo v. State, 239 S.W.3d 757, 763 (Tex. Crim. App. 2007); see
Ripkowski v. State, 61 S.W.3d 378, 393 (Tex. Crim. App. 2001). On appeal, Thomas does not
argue that all of the autopsy photographs contained on the dvd are irrelevant, but instead argues
that photographs that either showed Wallace completely naked or her sectioned skull were
irrelevant to the State’s burden of proof on any element in the indictment.10 The State argues
that Thomas only made a global objection to the relevance of the autopsy photographs at trial.
We agree that nothing in the record shows that Thomas complained of the specific photographs
he identifies in his appellate argument.
A general objection to the evidence as a whole, which does not point out specifically the
objected-to portion, is properly overruled if any part of that evidence is admissible. See
Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (citing Hernandez v. State, 599
S.W.2d 614, 617 (Tex. Crim. App. [Panel Op.] 1980) (op. on reh’g) (concluding that the
dissenting opinion correctly stated the rule that, “[w]hen evidence is admitted a part of which is
admissible and a part of which is not, it is incumbent on the party objecting to the admissibility
of the evidence to specifically point out what part is inadmissible to preserve the alleged error”)).
Here, the record does not show that Thomas raised anything other than a global relevance
10
Thomas’s argument is that “[t]he cause of death was described, and it did not include any narration about
sectioning the skull or the need for a full frontal nude picture of the corpse.”
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objection to the entirety of Exhibit 34. Such an objection was insufficient to preserve his
appellate complaint about specific photos that showed either Wallace completely naked or her
sectioned skull. See Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009). This is
because “[w]hile it might be conceded that appellant’s objection sufficiently stated grounds for
the objection, it did not identify what was objected to.” Id. (citing Hernandez, 599 S.W.2d at
617 (op. on reh’g)). As a result, “[t]he trial court need never sort through challenged evidence in
order to segregate the admissible from the excludable, nor is the trial court required to admit only
the former part or exclude only the latter part.” Id.; see Reyna v. State, 168 S.W.3d 173, 178
(Tex. Crim. App. 2005) (quoting Jones v. State, 843 S.W.2d 487, 492 (Tex. Crim. App. 1992),
overruled on other grounds by Maxwell v. State, 48 S.W.3d 196, 200 (Tex. Crim. App. 2001)).
We conclude that Thomas’s global objection to Exhibit 34 failed to preserve his
complaint about the relevance of specific photographs included within the exhibit. Moreover, “if
evidence is offered and challenged which contains [both admissible and inadmissible evidence],
the trial court may safely admit it or exclude it all, and the losing party, no matter who he is, will
be made to suffer on appeal the consequences of his insufficiently specific offer or objection.”
Id. (quoting Jones, 843 S.W.2d at 487).
Because we find that Thomas failed to preserve his appellate complaints about the
autopsy photographs, we overrule Thomas’s last point of error.
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VI. Conclusion
We affirm the trial court’s judgment.
Charles van Cleef
Justice
Date Submitted: July 12, 2022
Date Decided: August 3, 2022
Do Not Publish
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