COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00099-CR
RENARD TILFORD TUCKER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM CRIMINAL DISTRICT COURT NO. 3 OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In three points, Appellant Renard Tilford Tucker appeals his conviction for
aggravated assault with a deadly weapon. We affirm.
II. Factual and Procedural Background
On March 31, 2011, Shakena Ward, Brandon McElroy, Canota Wilson,
and Brandon Thompson left McElroy‘s cousin‘s apartment and got into McElroy‘s
1
See Tex. R. App. P. 47.4.
Jeep. Ward was driving, and McElroy was in the front passenger seat; Wilson
and Thompson were in the back seat.
As Ward began to back up the Jeep, she heard someone shout, and
looked back. Armed with handguns, Tucker; Lawarren Silas (also known as
―Dwan‖ or ―Juan‖), who McElroy recognized2 and who Ward later identified from a
photo spread; and Shawn Fowler, who subsequently confessed to participating in
the offense,3 approached the passenger side of the Jeep. Fowler opened the
front passenger door, Tucker stood at the right side passenger door, and Silas
stood in front of the windshield. Ward said that the men were looking for
someone.
When the Jeep‘s occupants said that they did not know whom the men
were looking for, the three armed men opened fire. The Jeep‘s occupants tried
to escape. Ward ran back toward the apartment and was shot in the eye, chin,
and back; the shooting left Ward blind in her right eye. Tony Jones, who was
outside a nearby apartment, was struck by a stray bullet that paralyzed him from
the ribs down and caused his left leg to be amputated.4 Jones did not see who
shot him, and he did not know anyone involved in the shooting.
2
McElroy subsequently told the investigating police detective that he owed
Silas some money.
3
Two of the handguns were later found in Fowler‘s apartment.
4
At the time of the trial, Jones was unsure whether his right leg would also
need to be amputated.
2
Police collected twelve bullet casings from the scene: seven were .40-
caliber Smith & Wesson casings, and five were 10-millimeter Winchester
casings. The trial court admitted a police diagram marking where each bullet
casing and other pieces of evidence were recovered. The diagram showed a
cluster of markings around where the Jeep had been, with the .40-caliber casings
on one side, and the 10-millimeter casings on the other.
Based on identifications by Ward and McElroy—admitted at trial over
Tucker‘s objections5—police obtained arrest warrants for Silas and Tucker, who
were subsequently arrested at Fowler‘s apartment. Fowler accompanied the
officers to the police station, confessed to being the third shooter, and consented
to a search of his apartment, where police found two .40-caliber handguns, which
a forensic scientist was later able to match to the .40-caliber cartridge casings
found at the scene. The trial court also admitted three photographs of Ward‘s
injuries over Tucker‘s objection that the photographs were gruesome,
inflammatory, and irrelevant because it was uncontested that Ward had been
shot in the eye.
The jury convicted Tucker of committing the aggravated assault with a
deadly weapon of Jones. After Tucker pleaded true to the repeat offender
5
Tucker objected that the other men in the photo spreads from which Ward
and McElroy identified him did not resemble him based on differences in hairstyle
and age.
3
allegation, the trial court assessed his punishment at fifty years‘ confinement, and
this appeal followed.
III. Sufficiency
In his second point, Tucker argues that the evidence is insufficient to
support his conviction. Specifically, he asserts that the evidence fails to show
that he intentionally or knowingly caused injury to Jones, that he knew Jones was
anywhere around the area, or that the bullets could have travelled to Jones.
A. Standard of Review
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v. State, 364 S.W.3d 900, 903 (Tex.
Crim. App. 2012). This standard gives full play to the responsibility of the trier of
fact to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at
319, 99 S. Ct. at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App.
2011).
B. Analysis
Tucker was charged with intentionally or knowingly causing bodily injury to
Jones by shooting him with a firearm, a per se deadly weapon. Tex. Penal Code
Ann. § 1.07(a)(17)(A) (West 2011 & Supp. 2012), §§ 22.01(a)(1), 22.02(a)(2)
4
(West 2011). The trial court instructed the jury on the law of transferred intent 6
and on the law of parties. See id. §§ 6.04(b)(2), 7.02(a)(2) (West 2011); see also
Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999) (stating that in general,
an instruction on the law of parties may be given to the jury whenever there is
sufficient evidence to support a jury verdict that the defendant is criminally
responsible under the law of parties), cert. denied, 529 U.S. 1070 (2000);
Manrique v. State, 994 S.W.2d 640, 647 (Tex. Crim. App. 1999) (stating that the
statutory principle of transferred intent is raised when there is evidence that a
defendant with the required culpable mental state intends to injure or harm a
specific person but injures or harms a different person or both).
Here, the evidence shows that Tucker,7 Silas, and Fowler surrounded
McElroy‘s Jeep, opened fire on its occupants, and continued to fire as the
vehicle‘s occupants tried to escape. Their shots struck Ward and Jones and left
6
The court of criminal appeals has stated:
A classic example of proper application of transferred intent is the
act of firing at an intended victim while that person is in a group of
other persons. If the intended person is killed, the offense is murder.
If a different person in the group is killed, the offense is murder
pursuant to [section] 6.04(b)(2). . . . In either case, there was one
intent to kill and one resulting death.
Roberts v. State, 273 S.W.3d 322, 330 (Tex. Crim. App. 2008).
7
Ward and McElroy identified Tucker as one of the three men who
surrounded the Jeep and fired on its occupants, and as to those identifications,
we must consider all the evidence admitted at trial, even if we conclude that
some of it was improperly admitted, when performing a sufficiency review.
Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Moff v. State, 131
S.W.3d 485, 489–90 (Tex. Crim. App. 2004).
5
casings at the scene that were later matched to two of the guns used. Although
Jones did not know anyone in the Jeep or any of the shooters, he happened to
be outside when the men opened fire and was struck by one of the gunshots
intended for the Jeep‘s occupants before he could run away. See Tex. Penal
Code Ann. § 6.04(b)(2); Manrique, 994 S.W.2d at 647. Viewing all of the
evidence in the light most favorable to the verdict, we conclude that the evidence
is sufficient to support the conviction, and we overrule Tucker‘s second point.
IV. Identification Procedures
In his first point, Tucker asserts that the trial court erred by failing to
suppress the in-court identification evidence because it was impermissibly tainted
by an alleged improper pretrial photo spread that contained no one else who
resembled Tucker.
A. Standard of Review
We review de novo a trial court‘s ruling on whether the suggestiveness of a
pretrial photo array may have influenced an in-court identification, considering
the totality of the circumstances to determine whether ―‗the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification.‘‖ Gamboa v. State, 296
S.W.3d 574, 581–82 (Tex. Crim. App. 2009) (quoting Loserth v. State, 963
S.W.2d 770, 772 (Tex. Crim. App. 1998)). We use a two-step analysis to
determine whether the trial court correctly admitted an in-court identification:
(1) whether the out-of-court identification procedure was impermissibly
6
suggestive and, if so, (2) whether the impermissibly suggestive procedure gave
rise to the substantial likelihood of irreparable misidentification. Barley v. State,
906 S.W.2d 27, 33 (Tex. Crim. App. 1995), cert. denied, 516 U.S. 1176 (1996).
A photographic array is not impermissibly suggestive merely because each
photograph can be distinguished in some manner from the accused‘s
photograph. Page v. State, 125 S.W.3d 640, 647 (Tex. App.—Houston [1st Dist.]
2003, pet. ref‘d).
Further, the appellant bears the burden to show by clear and convincing
evidence that the pretrial identification was impermissibly suggestive. Madden v.
State, 799 S.W.2d 683, 695 (Tex. Crim. App. 1990), cert. denied, 499 U.S. 954
(1991). If the totality of the circumstances reveals no substantial likelihood of
misidentification despite the suggestive identification procedure, the identification
testimony will be deemed reliable and therefore admissible, as ―reliability is the
linchpin in determining the admissibility of identification testimony.‖ Id. (quoting
Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253 (1977)). Factors
we consider in determining the likelihood of misidentification include the witness‘s
opportunity to view the criminal at the time of the crime, the witness‘s degree of
attention, the accuracy of the witness‘s prior description of the criminal, the
witness‘s level of certainty at the time of the confrontation, and the length of time
between the offense and the confrontation. Gamboa, 296 S.W.3d at 582.
7
B. Development of the Photo Spreads
Prior to the admission of the identification evidence, the trial court held a
hearing outside of the jury‘s presence. During the hearing, Fort Worth Police
Detective Dan Fenter testified that before separately showing the photo spreads
to Ward and to McElroy, he had admonished them that the person who was
involved might or might not be in the photo spread and that hair length and skin
shade could be skewed because of lighting or changes in hair length or facial
hair between the time of the photo and the way the suspect looked now.
Because McElroy had told Detective Fenter that he had seen Tucker before the
shooting and knew him by a nickname, Detective Fenter showed McElroy the
photo spread of Tucker to confirm who he was talking about.
Before the jury, Detective Fenter testified that Wilson had identified Silas
by the nickname ―Juan‖ and gave him ―Juan‘s‖ phone number, which he then
used to identify Silas. Detective Fenter put together a photo spread containing
Silas and four or five additional photo spreads of Silas‘s known associates that
matched the descriptions of the other two suspects. McElroy, who was hiding
from the shooting suspects at a hotel, identified Silas from one of the photo
spreads and identified Tucker from one of the others. McElroy identified Silas
―right off the bat‖ as ―Juan,‖ and then picked Tucker out as ―the big guy.‖
Detective Fenter explained to the jury that when selecting photographs to
include, he went by ―a general range of age and body style and hairstyles, if it‘s
possible,‖ and that in this case, he made sure to include people with long hair
8
and short hair because he had received a description of Tucker as having short
hair. He testified that he tried to match the physical descriptions that he had
received. Detective Fenter said that when he saw Tucker just days after the
shooting, Tucker‘s hair was short.
Detective Fenter stated that his partner showed Ward the photo spreads
containing Silas‘s photo and that she identified Silas. Detective Fenter
subsequently showed Ward the photo spread containing Tucker‘s photo after
McElroy had already given him a positive identification of Tucker. Ward, who
was still in the hospital when she viewed the photo spreads, identified Tucker
immediately.
The identifications by Ward and McElroy were made at separate times less
than a week after the shooting. Prior to viewing the array, both were instructed
that the photographs might or might not include a picture of the individual under
investigation and that they should not focus on easily-altered hair length or facial
hair. When Detective Fenter assembled the photographs, the description he had
of Tucker was that of a heavy-set black male with short hair. While both
witnesses were under fire at the time of the crime, both were certain in their
identifications, and McElroy, who owed Silas money, recognized Tucker from
before the offense.
An examination of the photographic array shows that all six individuals
depicted are African-American. Three individuals have short hair, one has
medium length hair, and two—including Tucker—have long hair. All of the
9
individuals are pictured from the shoulder up, preventing an accurate
ascertainment of their build, but their facial features all seem to depict medium-
to-heavy-set men in the same general age bracket—three appear younger and
three appear older, but all appear to be in their twenties or early thirties. Adding
credibility to the accuracy of the identification is that Tucker is one of the two
individuals depicted with long hair despite the fact that he had short hair at the
time of the shooting. Under these circumstances we cannot say that the pretrial
identification was ―impermissibly suggestive,‖8 and we overrule Tucker‘s first
point.
8
While Tucker argues that McElroy testified that none of the other photos in
the photo spread looked like him, during cross-examination, McElroy said that as
soon as the photos were put in front of him, ―there was no question in [his] mind
that this was the man that did that,‖ even though he did not see Tucker ―on a
day-to-day basis to have a full description of him.‖ McElroy then testified as
follows:
Q. Let me ask you about this State‘s 63, which is your photo
array, which has already been admitted. This is the person that you
know as Mr. Tucker, right?
A. Yeah.
Q. This is the person that you know that is friends with Mr.
Silas, right?
A. Right.
Q. And he looks nothing like the other five people, does he?
A. No, he does not.
Q. Doesn‘t look anything like that. And you knew him as Mr.
Silas’s friend, correct?
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V. Photographic Evidence
In his third point, Tucker asserts that the trial court erred by admitting
photographs of Ward.
A. Standard of Review
When determining whether photographic exhibits were properly admitted,
the question is not whether the exhibits are more prejudicial than probative, but
rather whether the probative value of the photographs is substantially outweighed
by the danger of unfair prejudice. Salazar v. State, 38 S.W.3d 141, 151 (Tex.
Crim. App.), cert. denied, 534 U.S. 855 (2001); see also Tex. R. Evid. 403. We
review a rule 403 decision for an abuse of discretion. Salazar, 38 S.W.3d at 151;
Narvaiz v. State, 840 S.W.2d 415, 428–29 (Tex. Crim. App. 1992), cert. denied,
507 U.S. 975 (1993); see also Montgomery v. State, 810 S.W.2d 372, 390 (Tex.
Crim. App. 1991) (op. on reh‘g).
In reviewing a trial court‘s ruling on the admissibility of photographic
evidence, we consider not only the general rule 403 factors—the probative value
of the evidence; the potential to impress the jury in some irrational, yet indelible,
way; the time needed to develop the evidence; and the proponent's need for the
A. Yes, I did.
[Emphasis added.] Instead of demonstrating suggestiveness, within context,
McElroy‘s testimony shows that he recognized Tucker, but not the other men in
the array, because he knew Tucker before the shooting, which is corroborated by
Detective Fenter‘s testimony during the hearing outside the jury‘s presence that
he showed the photo array to McElroy to confirm that Tucker was the person
McElroy was talking about.
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evidence—but also the following nonexclusive list: the number of exhibits
offered, their gruesomeness, their detail, their size, whether they are black and
white or color, whether they are close-up shots, whether the body is naked or
clothed, the availability of other means of proof, and other circumstances unique
to the individual case. Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App.
2004); King v. State, 189 S.W.3d 347, 355 (Tex. App.—Fort Worth 2006, no
pet.).
B. The Photographs
The three photographs at issue are State‘s Exhibits 35, 36, and 37.
State‘s Exhibit 35 is a photograph of the right side of Ward‘s face where she had
been shot in the eye. The photograph depicts Ward with her eyelid closed and
shows no injury discernible other than some blood that had trickled toward the
back of her head from her eye. State‘s Exhibit 36 is a photograph of the
underside of Ward‘s chin and depicts the bloodier wound presumably caused by
a gunshot to her chin. State‘s Exhibit 37 depicts the same chin wound from a
different angle, which makes it appear larger but less bloody.
C. Analysis
Because the State proceeded under the theory of transferred intent, it had
to prove that Tucker had intended to commit aggravated assault with a deadly
weapon. Ward‘s injuries are such probative evidence. Further, the three
photographs themselves, which are close-up shots of Ward‘s head, are not
overly gruesome, horrific, or likely to make some indelible impression on the
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jurors, unlike the photograph in Rolle v. State, 367 S.W.3d 746 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref‘d), upon which Tucker relies in his argument.9
Therefore, because their prejudicial weight, if any, does not overcome their
probative value with regard to the transferred-intent issue, we hold that the trial
court did not abuse its discretion by admitting the three photographs, and we
overrule Tucker‘s third point.
VI. Conclusion
Having overruled Tucker‘s three points, we affirm the trial court‘s judgment.
PER CURIAM
PANEL: MCCOY, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 30, 2013
9
In Rolle, the court held that the admission of a single color photo of the
victim‘s unborn child was error when, among other things, the victim was killed
during the course of the burglary of a habitation, the photograph had little
probative value in relation to the charged offense of capital murder, and the
photograph of the tiny, innocent, and vulnerable unborn child had the ability to
impress the jury in some irrational yet indelible way. Id. at 749–51.
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