Mark Honish v. State

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00407-CR

MARK HONISH APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 367TH DISTRICT COURT OF DENTON COUNTY

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MEMORANDUM OPINION1

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I. INTRODUCTION

A jury convicted Appellant Mark Honish of murder, and the trial court

sentenced him to fifty years‘ imprisonment. See Tex. Penal Code Ann. §

19.02(b) (West 2011). In six issues, Appellant argues that the trial court erred by

admitting illegally-obtained evidence and by excluding defense evidence, that the

evidence is insufficient to support his conviction, that he was denied a speedy
1
See Tex. R. App. P. 47.4.
trial, and that the State made an incurable improper jury argument. We will

affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Appellant and his brother David had been in the process of opening a large

indoor gun range. Appellant is a convicted felon. The brothers began feuding

about the business, and David threatened to expose Appellant for unlawfully

possessing a firearm as a convicted felon.

David was found dead in his truck on the side of a road at 11:30 p.m. on

June 21, 2007. He had been shot twice in the left side of his head. Texas

Ranger Tracy Murphree investigated the scene; he noticed blood spatter inside

David‘s truck and on the outside driver‘s side. No gun was found at the scene.

David‘s truck was running, the window was down, and he was buckled into his

seatbelt. It had been raining that day, and there were fresh tire tracks in the mud

alongside the driver‘s side of David‘s truck. Ranger Murphree concluded that the

shooter was in another vehicle, probably a large SUV or truck based on the size

of the tire tracks, and had pulled up alongside the driver‘s side of David‘s truck

and shot him. Police found a folder with a copy of an email from David to

Appellant inside David‘s truck. In the email, dated June 6, 2007, fifteen days

prior to the shooting, David said Appellant was late paying ―the next $1K

installment‖ and threatened to expose Appellant as a convicted felon.2

2
The email stated, in part,

2
 Ranger Murphree contacted David‘s ex-wife from the scene, and she

confirmed the feud between Appellant and David. Appellant lived ten to twelve

miles from the scene, and the tracks in the mud near David‘s car headed in the

direction of Appellant‘s home. Flower Mound Police Sergeant Colin Sullivan

went back to the police department to prepare an affidavit for a search warrant to

search Appellant‘s house and vehicle. Ranger Murphree and Denton County

Sheriff‘s Department Investigator Larry Kish drove to Appellant‘s house at around

4:30 a.m. and saw a Ford truck in Appellant‘s driveway. The truck was

registered to Appellant. From the street, Ranger Murphree could see mud on the

side of the truck. He and Investigator Kish walked into the driveway to get a

better look at the truck; they shone a flashlight on the truck and could see fresh

We are four days into a new month, and you are late with the
next $1K installment.

You seem confused over the ground rules, as evidenced by
your last visit? Let me explain reality to you.

I have you under my heel for the rest of this lifetime, and can
crush you at will because of your own stupidity and your ongoing
felony possession of firearms. Nothing you can do will change that.
You should start to behave accordingly and belatedly learn some
manners at least, if not develop any integrity.

....

UNBLOCK YOUR EMAIL ASSHOLE. BAD NEWS WILL NOT
DISAPPEAR BECAUSE YOU DON‘T WANT TO SEE IT. IT WILL
JUST COME TO YOU THRU ANOTHER SOURCE, MAYBE EVEN
THIRD PARTIES THAT YOU‘D JUST AS SOON NOT BE
INFORMED OF YOUR LIES, TREACHERY, AND ONGOING
FELONY ACTIVITY.

3
mud on the passenger side of the truck and that the tire tread pattern and width

matched that of the tire tracks at the scene. The officers returned to their squad

car and continued conducting surveillance; Ranger Murphree relayed to

Sergeant Sullivan what they had seen on Appellant‘s truck.

At around 6:00 a.m., the officers saw Appellant get in his truck. Ranger

Murphree stopped Appellant a few houses down from his house, and when

Appellant opened the door to get out, Ranger Murphree saw a wipe mark in an

S-pattern on the driver‘s side door; the truck was covered in road dust except the

wipe-marked area. Ranger Murphree also saw a line of mud on the right

passenger tire, indicating that it had been in ―deep mud,‖ and saw wet mud

―sitting pretty loosely‖ on the running board, indicating that the truck had recently

been in mud. Ranger Murphree told Appellant that his brother had been shot

and asked if Appellant would move his truck back to his driveway because they

were in the middle of the street. Appellant complied. Once in front of the

driveway, Ranger Murphree told Appellant that he understood the brothers had

been feuding. In response, Appellant said that he and David were trying to open

a gun range and that David was trying to blackmail Appellant because he was a

convicted felon; he then commented, ―I guess you probably know that because of

the paperwork in his vehicle.‖

Appellant, who was a pilot for Dean Foods, asked the officers if he should

cancel a flight he was scheduled to make that day. Ranger Murphree said that

would be a good idea. Appellant then began making numerous phone calls for

4
about thirty minutes. As the sun began to rise, Ranger Murphree noticed six

drops of blood on the running board and fender well of Appellant‘s truck, just

below the wipe mark that he had noticed earlier. Ranger Murphree relayed what

he found on Appellant‘s truck to Sergeant Sullivan for inclusion in the search

warrant affidavit. Police arrived with a cast of the tire tracks from the murder

scene; they compared the cast to the tires on Appellant‘s truck and determined

that the two matched. At one point, Appellant licked his thumb and rubbed

something on the truck near the driver‘s door handle. Ranger Murphree

instructed him not to touch the truck.

While they were waiting on the search warrant, a sprinkling rain began so

Investigator Kish collected samples of blood and dirt from Appellant‘s truck in

order to preserve evidence. Police then covered the door with plastic and a tarp

and called for a wrecker. A search warrant issued shortly thereafter, around 8:15

a.m., and officers took guns and clothing from Appellant‘s house.

At trial, evidence showed that Appellant was on a flight the day of David‘s

murder and arrived back in Dallas at 9:18 that night. Evidence also showed that

the alarm at Advanced Gunworks, for which Appellant had security codes to

enter, had been disabled at 10:37 that night and that a Bushmaster AR-15 was

missing from the business. The drive from the airport to Advanced Gunworks

takes about thirty minutes and from the gun business to the murder scene takes

about eight minutes. Evidence at trial also showed that Appellant was giving

David money and that he would meet David somewhere between Denton—

5
where David lived—and Trophy Club—where Appellant lived—to give David

money.

Police found the AR-15 that had been taken from Advanced Gunworks in

Appellant‘s house. Police also found a .357 magnum handgun containing six

rounds of .38 special ammunition in Appellant‘s house. A .38-caliber handgun

was found in a creek between the crime scene and Appellant‘s home; the gun

belonged to Appellant‘s wife. The gun contained four live rounds and two spent

rounds of .38 Special P Plus ammunition. A senior firearm and tool mark

examiner testified to her opinion that the two bullets recovered from David‘s body

were fired from the .38-caliber handgun found in the creek.

DNA swabs taken from Appellant‘s truck tested positive for blood and

matched David‘s DNA.3 Soil samples taken from Appellant‘s truck matched the

soil at the crime scene but did not match the soil around Appellant‘s house.

III. COMPLAINTS OF ILLEGALLY-OBTAINED EVIDENCE

In his first issue, Appellant argues that the trial court erred by denying his

motion to suppress evidence obtained pursuant to a warrantless search in

violation of the Fourth Amendment. Specifically, Appellant complains of police

going onto his property to look at his truck and, after stopping him in the street

but prior to obtaining the search warrant, taking swabs of the mud and blood on

3
Evidence showed that one in over 39 quadrillion Caucasians, one in 1.1
quintillion African Americans, and one in over 409 quadrillion Southwest
Hispanics had the same DNA profile as that in the blood found on Appellant‘s
truck.

6
his truck without probable cause and without justification. He also argues that

the search warrant‘s supporting affidavit was insufficient to provide probable

cause and contained illegally-obtained evidence—specifically, statements he

made to police and the mud and blood on his truck. In his second issue,

Appellant contends that statements he made to the officers after he was stopped

were taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602

(1966).

A. Standard of Review

We review a trial court‘s ruling on a motion to suppress evidence under a

bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

In reviewing the trial court‘s decision, we do not engage in our own factual

review. Romero v. State, 800 S.W.2d 539, 543 (Tex. Crim. App. 1990); Best v.

State, 118 S.W.3d 857, 861 (Tex. App.—Fort Worth 2003, no pet.). The trial

judge is the sole trier of fact and judge of the credibility of the witnesses and the

weight to be given their testimony. Wiede v. State, 214 S.W.3d 17, 24–25 (Tex.

Crim. App. 2007); State v. Ross, 32 S.W.3d 853, 855 (Tex. Crim. App. 2000),

modified on other grounds by State v. Cullen, 195 S.W.3d 696 (Tex. Crim. App.

2006). Therefore, we give almost total deference to the trial court‘s rulings on

(1) questions of historical fact, even if the trial court‘s determination of those facts

was not based on an evaluation of credibility and demeanor, and (2) application-

of-law-to-fact questions that turn on an evaluation of credibility and demeanor.

7
Amador, 221 S.W.3d at 673; Montanez v. State, 195 S.W.3d 101, 108–09 (Tex.

Crim. App. 2006); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App.

2002). But when application-of-law-to-fact questions do not turn on the credibility

and demeanor of the witnesses, we review the trial court‘s rulings on those

questions de novo. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d

604, 607 (Tex. Crim. App. 2005); Johnson, 68 S.W.3d at 652–53.

Stated another way, when reviewing the trial court‘s ruling on a motion to

suppress, we must view the evidence in the light most favorable to the trial

court‘s ruling. Wiede, 214 S.W.3d at 24; State v. Kelly, 204 S.W.3d 808, 818

(Tex. Crim. App. 2006). When the record is silent on the reasons for the trial

court‘s ruling, or when there are no explicit fact findings and neither party timely

requested findings and conclusions from the trial court, we imply the necessary

fact findings that would support the trial court‘s ruling if the evidence, viewed in

the light most favorable to the trial court‘s ruling, supports those findings. State

v. Garcia-Cantu, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008); see Wiede, 214

S.W.3d at 25. We then review the trial court‘s legal ruling de novo unless the

implied fact findings supported by the record are also dispositive of the legal

ruling. Kelly, 204 S.W.3d at 819.

Ordinarily, we consider only evidence adduced at the suppression hearing

because the ruling was based on it rather than evidence introduced later. See

Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App. 2007); Rachal v. State,

917 S.W.2d 799, 809 (Tex. Crim. App.), cert. denied, 519 U.S. 1043 (1996). But

8
this general rule is inapplicable when, as here, the parties consensually

relitigated the suppression issues during trial on the merits. Gutierrez, 221

S.W.3d at 687; Rachal, 917 S.W.2d at 809 (considering trial evidence in

suppression review when State reintroduced suppression issues without

objection and when defense counsel fully participated in relitigation of issues in

cross-examination).

B. Initial Entry Onto Driveway

Appellant first challenges Ranger Murphree‘s and Investigator Kish‘s initial

entry onto his driveway without a warrant to look at his truck. It is well settled

that the Fourth Amendment provides significant protection to homes and the

areas immediately attached to and surrounding them. Rodriguez v. State, 106

S.W.3d 224, 228 (Tex. App.—Houston [1st Dist.] 2003, pet. ref‘d) (citing United

States v. Tarazon-Silva, 960 F. Supp. 1152, 1162 (W.D.Tex. 1997), aff’d, 166

F.3d 341 (5th Cir. 1998)), cert. denied, 540 U.S. 1189 (2004). Those areas

immediately attached to and surrounding a home are referred to as the

―curtilage,‖ and whether a particular area is included within the curtilage of a

home is determined by whether the defendant had a reasonable expectation of

privacy in the area. Matthews v. State, 165 S.W.3d 104, 113 (Tex. App.—Fort

Worth 2005, no pet.) (citing Bower v. State, 769 S.W.2d 887, 897 (Tex. Crim.

App.), cert. denied, 492 U.S. 927 (1989), overruled on other grounds by Heitman

v. State, 815 S.W.2d 681 (Tex. Crim. App. 1991)).

9
 Here, however, we need not determine whether the officers violated

Appellant‘s Fourth Amendment rights because the information obtained by the

officers after walking onto Appellant‘s driveway—that his truck had mud on it

consistent with the murder scene and that his truck tires matched the tire tracks

found at the murder scene—was also obtained when the officers stopped

Appellant as he left his house that morning. In other words, the officers saw the

mud and tire tread pattern and width when they walked onto his driveway, but

they also saw the mud and tire tread pattern and width—in fact, in greater

detail—after they stopped him and he parked in front of his driveway. Appellant

does not challenge the legality of the officers‘ stop on appeal. Accordingly, even

assuming the officers‘ initial warrantless entry onto Appellant‘s property to look at

his truck violated his reasonable expectation of privacy, any error in admitting

evidence attained by the officers during this entry cannot constitute reversible

error because that same evidence was attained by officers after they stopped

Appellant and the admission of this evidence attained during the stop is not

challenged on appeal.4 See Leday v. State, 983 S.W.2d 713, 717 (Tex. Crim.

App. 1998) (―‗It is well established that the improper admission of evidence does

not constitute reversible error if the same facts are shown by other evidence

which is not challenged.‘‖) (quoting Crocker v. State, 573 S.W.2d 190, 201 (Tex.

Crim. App. [Panel Op.] 1978)); Cration v. State, No. 14-02-00393-CR, 2003 WL

4
To the extent that Appellant challenges the officers‘ collecting blood and
mud from his truck after the stop, we address that complaint below.

10
22908133, at *2 (Tex. App.—Houston [14th Dist.] Dec. 11, 2003, no pet.) (mem.

op., not designated for publication) (applying Leday reasoning to render harmless

alleged error in admitting evidence when same evidence was admitted, over

appellant‘s objection, elsewhere and when appellant did not challenge latter

admission on appeal); Heidelberg v. State, 112 S.W.3d 658, 664 (Tex. App.—

Houston [1st Dist.] 2003), aff’d, 144 S.W.3d 535 (Tex. Crim. App. 2004).

C. Evidence Obtained Prior to Issuance of Search Warrant

Appellant next complains of the police collecting swabs of blood and mud

samples from his truck prior to the issuance of the search warrant. A warrantless

search is justified when the State shows (1) that probable cause existed at the

time the search was made and (2) that exigent circumstances existed that made

the procuring of a warrant impracticable. Turrubiate v. State, No. PD-0388-12,

2013 WL 1438172, at *2 (Tex. Crim. App. Apr. 10, 2013); Estrada v. State, 154

S.W.3d 604, 610 (Tex. Crim. App. 2005); McNairy v. State, 835 S.W.2d 101, 106

(Tex. Crim. App. 1991), abrogated in part on other grounds by Turrubiate, 2013

WL 1428172, at *4; Pair v. State, 184 S.W.3d 329, 334 (Tex. App.—Fort Worth

2006, no pet.). Probable cause to search exists when reasonably trustworthy

facts and circumstances within the knowledge of the officer on the scene would

lead a man of reasonable prudence to believe that the instrumentality of a crime

or evidence of a crime will be found. Turrubiate, 2013 WL 1438172, at *2;

McNairy, 835 S.W.2d at 106. Exigent circumstances exist allowing a warrantless

search when officers have a reasonable belief that evidence or contraband will

11
be destroyed before they can obtain a search warrant. McNairy, 835 S.W.2d at

106; see Turrubiate, 2013 WL 1438172, at *4 (limiting consideration of McNairy

factors in determining ―ultimate question‖ of whether officers could have

reasonably believed that removal or destruction of evidence was imminent)

(citing Kentucky v. King, 131 S. Ct. 1849, 1862 (2011)).

Applying these principles to this case, the evidence at the suppression

hearing showed that David was found dead in his truck ten to twelve miles from

Appellant‘s house; muddy tire tracks next to David‘s truck went in the direction of

Appellant‘s house; an email found in David‘s truck showed that he was

blackmailing Appellant; a phone call to David‘s ex-wife confirmed that the

brothers were feuding; police saw mud on one side of Appellant‘s truck

consistent with the tire tracks at the murder scene, saw drops of blood on the

other side of his truck, and saw a wipe mark in an S-pattern on the driver‘s door

above the blood spatter; and the tire tread and width of Appellant‘s truck tires

matched that of the tracks found at the murder scene. Viewing the evidence in

the light most favorable to the trial court‘s ruling and considering the facts and

circumstances available to the officers prior to the search, as well as the

reasonable inferences from that information, we hold that probable cause existed

that evidence of David‘s murder could be found on Appellant‘s truck. See

McNairy, 835 S.W.2d at 106.

Moving on to determine whether exigent circumstances existed to justify

the warrantless search, Ranger Murphree testified that as they were waiting for

12
the search warrant to arrive, a sprinkling rain began. He also said that the area

had received ―a pretty good downpour‖ the previous morning and that, ―in an

effort to preserve evidence,‖ Investigator Kish took swabs of blood off the running

board on Appellant‘s truck and mud samples from the passenger side. Ranger

Murphree testified to his opinion that, based on the weather, it was immediately

necessary to do so: ―If you get a big downpour where we‘re at out in the open,

we‘re going to . . . quite possibly lose . . . the blood and . . . the mud.‖ The

officers did not search the interior of the truck or otherwise continue their search

after collecting the swabs of mud and blood from the exterior of the truck;

instead, they covered the truck door with plastic and waited until they received

the search warrant. The officers could have reasonably believed that the

evidence on the exterior of the truck would be destroyed before they obtained the

search warrant so that exigent circumstances allowed the warrantless search of

Appellant‘s truck. See Turrubiate, 2013 WL 1438172, at *2; McNairy, 835

S.W.2d at 107. Accordingly, the trial court did not err by denying Appellant‘s

motion to suppress evidence of the mud and blood collected from Appellant‘s

truck prior to issuance of the warrant.

D. Statements During Custodial Detention

Appellant next complains that the statements he made to the officers

during the investigative detention were the result of a custodial interrogation

conducted without Miranda warnings. He does not point out the specific

statements that should have been suppressed, and the record reveals only the

13
following statements made by Appellant after he was stopped: in response to

Ranger Murphree saying that he understood that Appellant and his brother had

been feuding, Appellant said that they had a falling out over a shooting range

business that they were attempting to start, and Appellant said his brother had

been threatening to reveal to business partners and to the authorities that

Appellant was a convicted felon and then said, ―I guess you probably know that

because of the paperwork in his vehicle.‖

The State may not use a defendant‘s statements, whether exculpatory or

inculpatory, stemming from a custodial interrogation unless the State

demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination. Miranda, 384 U.S. at 436, 86 S. Ct. at 1602.

Additionally, article 38.22 of the code of criminal procedure precludes the use of

statements that result from a custodial interrogation without compliance with

certain procedural safeguards. See Tex. Code Crim. Proc. Ann. art. 38.22 (West

2005). When a statement taken in violation of the Fifth Amendment is improperly

admitted as evidence at trial, we apply rule 44.2(a) to determine whether the

error calls for reversal of the judgment. See Tex. R. App. P. 44.2(a). Under rule

44.2(a), we must reverse the conviction unless we determine beyond a

reasonable doubt that the error did not contribute to the appellant‘s conviction or

punishment. Id. In applying the ―harmless error‖ test, our primary question is

whether there is a ―reasonable possibility‖ that the error might have contributed to

14
the conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)

(op. on reh‘g), cert. denied, 526 U.S. 1070 (1999).

Our harmless error analysis should not focus on the propriety of the

outcome of the trial; instead, we should calculate as much as possible the

probable impact on the jury in light of the existence of other evidence. Wesbrook

v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944

(2001). We ―should take into account any and every circumstance apparent in

the record that logically informs an appellate determination whether ‗beyond a

reasonable doubt [that particular] error did not contribute to the conviction or

punishment,‘‖ and if applicable, we may consider the nature of the error, the

extent that it was emphasized by the State, its probable collateral implications,

and the weight a juror would probably place on the error. Snowden v. State, 353

S.W.3d 815, 822 (Tex. Crim. App. 2011) (quoting Tex. R. App. P. 44.2(a)). This

requires us to evaluate the entire record in a neutral, impartial, and even-handed

manner, not ―in the light most favorable to the prosecution.‖ Harris v. State, 790

S.W.2d 568, 586 (Tex. Crim. App. 1989), disagreed with in part on other grounds

by Snowden, 353 S.W.3d at 821–22.

Here, assuming the trial court should have excluded Appellant‘s

statements as taken in violation of Miranda, other evidence admitted at trial—

including the printout of the email found in David‘s truck—showed that Appellant

was feuding with his brother and that David had threatened to reveal that

Appellant was a convicted felon in possession of firearms. Additionally, we

15
recount below in our sufficiency review the overwhelming evidence of Appellant‘s

guilt. Although Appellant‘s indicating to police that he knew about the printed-out

email in his brother‘s truck adds a detail not admitted elsewhere, we cannot say

that, in light of the other evidence of Appellant‘s guilt, a juror would place much, if

any, weight on the statement. See Snowden, 353 S.W.3d at 822; see also Jones

v. State, 119 S.W.3d 766, 778–80 (Tex. Crim. App. 2003) (assessing

independent proof of appellant‘s participation in extraneous murders exclusive of

statement taken in violation of Miranda), cert. denied, 542 U.S. 905 (2004). The

State mentioned the complained-of statements briefly in its opening statement

and did not mention them in its closing argument. After carefully reviewing the

record and performing the required harm analysis under rule 44.2(a), we hold

beyond a reasonable doubt that any error in admitting Appellant‘s statements

made to the officers after he was stopped did not contribute to his conviction or

punishment.5 See Tex. R. App. P. 44.2(a).

E. Sufficiency of Supporting Affidavit

Appellant next complains of the probable cause affidavit. A search warrant

cannot issue unless it is based on probable cause as determined from the four

corners of an affidavit. U.S. Const. amend. IV; Tex. Const. art. I, § 9; Tex. Code

Crim. Proc. Ann. art. 18.01(b) (West Supp. 2012) (―A sworn affidavit . . .

5
To the extent Appellant makes the conclusory assertion, without citation to
applicable law or further explanation, that the trial court erred by ―not permitting
the 38.23 instruction to the jury,‖ he has presented nothing for review. See Tex.
R. App. P. 38.1(i); Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000).

16
establishing probable cause shall be filed in every instance in which a search

warrant is requested.‖); Nichols v. State, 877 S.W.2d 494, 497 (Tex. App.—Fort

Worth 1994, pet. ref‘d).

Under the Fourth Amendment and the Texas constitution, an affidavit

supporting a search warrant is sufficient if, from the totality of the circumstances

reflected in the affidavit, the magistrate was provided with a substantial basis for

concluding that probable cause existed. Swearingen v. State, 143 S.W.3d 808,

810–11 (Tex. Crim. App. 2004); Nichols, 877 S.W.2d at 497. Article 18.01(c) of

the code of criminal procedure requires an affidavit to set forth facts establishing

that (1) a specific offense has been committed, (2) the item to be seized

constitutes evidence of the offense or evidence that a particular person

committed the offense, and (3) the item is located at or on the person, place, or

thing to be searched. Tex. Code Crim. Proc. Ann. art. 18.01(c); see Tolentino v.

State, 638 S.W.2d 499, 501 (Tex. Crim. App. [Panel Op.] 1982). Probable cause

for a search warrant exists if, under the totality of the circumstances presented to

the magistrate in an affidavit, there is at least a ―‗fair probability‘‖ or ―‗substantial

chance‘‖ that evidence of a crime will be found at the specified location. Flores v.

State, 319 S.W.3d 697, 702 (Tex. Crim. App. 2010) (quoting Illinois v. Gates, 462

U.S. 213, 238, 243 n.13, 103 S. Ct. 2317, 2332, 2335 n.13 (1983)). The

magistrate‘s action ―cannot be a mere ratification of the bare conclusions of

others.‖ Gates, 462 U.S. at 239, 103 S. Ct. at 2333.

17
 When reviewing a magistrate‘s decision to issue a warrant, we apply a

deferential standard in keeping with the constitutional preference for a warrant.

State v. McLain, 337 S.W.3d 268, 271–72 (Tex. Crim. App. 2011); Rodriguez v.

State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007); Emenhiser v. State, 196

S.W.3d 915, 924–25 (Tex. App.—Fort Worth 2006, pet. ref‘d). We should

interpret the affidavit in a commonsense and realistic manner, recognizing that

the magistrate may draw reasonable inferences. See Rodriguez, 232 S.W.3d at

61.

Here, the affiant informed the magistrate of the following:

 Officers found David dead, apparently of a gunshot wound, in
his truck on the side of the road;

 Officers saw ―a clear set of tire tracks traveling north bound
alongside and in close proximity to the victim‘s driver side door,‖ and
Ranger Murphree noted the muddy shoulder of the road, the tire
tracks, and the blood spatter on the vehicle;

 Officers found a printed email in David‘s truck that David sent
Appellant, threatening Appellant: ―You don‘t roar at me and wag
your finger in my face, EVER AGAIN IN THIS LIFETIME ASSHOLE!
I explained to you in FEB 2006 that I was finished taking shit from
you. I meant it. There will be severe consequences for
noncompliance . . . because of your own stupidity and your ongoing
felony possession of firearms‖;

 David‘s ex-wife confirmed that he and Appellant had been
feuding for some time;

 Ranger Murphree and Deputy Kish drove to Appellant‘s house
and saw a white male pulling out of the driveway in a 2006 black
Ford truck; and

18
  Ranger Murphree saw six drops of blood on the driver‘s side
running board of Appellant‘s truck, saw mud on the tail pipe on the
right side of the truck that matched the characteristics of the mud
from the crime scene, and noticed that the tread pattern of
Appellant‘s truck tires matched the tire marks left at the crime
scene.6

We conclude that, based on the totality of the circumstances reflected in the

affidavit, the magistrate had a substantial basis to conclude that there was a ―fair

probability‖ or ―substantial chance‖ that evidence of a particular crime—murder—

would likely be found in Appellant‘s house and truck. See McLain, 337 S.W.3d at

271; Flores, 319 S.W.3d at 702; Swearingen, 143 S.W.3d at 810–11; Nichols,

877 S.W.2d at 497. Accordingly, the trial court did not err by denying Appellant‘s

motion to suppress evidence seized from his truck and home on the ground that

the affidavit did not establish probable cause.

Having addressed all of Appellant‘s arguments in his first and second

issues, we overrule them.

6
The affidavit also included Appellant‘s statement after he was stopped,
―[David] has been threatening me, but you probably know that by looking at the
email in his truck,‖ and noted that Ranger Murphree had never told Appellant that
David was shot in his truck. Because we have assumed that this statement was
taken in violation of Miranda, we do not consider this evidence in our evaluation
of the sufficiency of the probable cause affidavit. See Massey v. State, 933
S.W.2d 141, 148 (Tex. Crim. App. 1996); Castillo v. State, 818 S.W.2d 803, 805
(Tex. Crim. App. 1991) (putting aside all tainted allegations in a probable cause
affidavit to determine whether the independently and lawfully acquired
information stated in the affidavit clearly established probable cause), overruled
on other grounds by Torres v. State, 182 S.W.3d 899 (Tex. Crim. App. 2005).

19
 IV. EXCLUSION OF DEFENSE EVIDENCE

In his third issue, Appellant argues that the trial court abused its discretion

by excluding evidence relating to his defensive theory that another truck and

another potential suspect was involved. When reviewing a trial court‘s decision

to admit or exclude evidence, we apply an abuse-of-discretion standard. Ramos

v. State, 245 S.W.3d 410, 417–18 (Tex. Crim. App. 2008). The trial court does

not abuse its discretion unless its ruling lies ―outside the zone of reasonable

disagreement.‖ Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).

Whether evidence is relevant is a matter within the sound discretion of the trial

court. Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993), cert.

denied, 510 U.S. 966 (1993); see Tex. R. Evid. 401. Even relevant evidence

may be excluded if the probative value is substantially outweighed by the danger

of unfair prejudice, confusion of the issues, misleading the jury, considerations of

undue delay, or needless presentation of cumulative evidence. Tex. R. Evid.

403.

Appellant argues that he should have been allowed to present evidence—

through his own testimony—that David was a drug dealer and drug abuser in

order to advance Appellant‘s defensive theory that someone else shot David.

Appellant made an offer of proof but did not tender any other evidence

connecting David‘s alleged drug use or dealing to his murder; thus, the trial court

acted within its discretion by excluding this evidence. See Tex. R. Evid. 401,

403; Dickson v. State, 246 S.W.3d 733, 739 (Tex. App.—Houston [14th Dist.]

20
2007, pet. ref‘d) (―Texas jurisprudence is clear that evidence of third party guilt is

inadmissible if it is mere speculation that another person may have committed

the offense.‖).

Another defensive theory was that the distance between the tires on

Appellant‘s 2006 Ford F-350 truck did not match the tire tracks left at the scene;

defense counsel attempted to prove this by having Appellant measure, in court,

the distance between the tires taken off his truck to ―tell the true track of the F-

350.‖ Even assuming that the trial court should have admitted this in-court-

measurement evidence, Appellant nonetheless did present evidence and cross-

examine the State‘s witnesses regarding the distance between the tires on his

truck in comparison to the distance between the tire tracks found at the murder

scene. Specifically, Appellant called the officer who had measured both the tire

tracks at the murder scene and the tire distance on Appellant‘s truck the day after

the murder, and Appellant introduced into evidence a diagram showing the

distance between the tires on Appellant‘s truck. Appellant did not assert in his

offer of proof and has not asserted on appeal that Appellant‘s in-court

measurements would have varied from the officer‘s measurements. We cannot

say that, in the context of the entire case against Appellant, the trial court‘s

prohibiting Appellant from making those same measurements at trial in front of

the jury had a substantial or injurious effect on the jury‘s verdict. See Tex. R.

App. P. 44.2(b); King, 953 S.W.2d at 271; see also, e.g., Anderson v. State, 717

S.W.2d 622, 628 (Tex. Crim. App. 1986) (holding that to show harm, the

21
excluded evidence must be controlling on a material issue and not cumulative of

other evidence). We overrule Appellant‘s third issue.

V. SUFFICIENCY OF THE EVIDENCE

In his fourth issue, Appellant argues that insufficient evidence exists to

support his conviction. 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).

The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Wise, 364

S.W.3d at 903. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

22
Crim. App. 2011). We must presume that the factfinder resolved any conflicting

inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S.

at 326, 99 S. Ct. at 2793; Wise, 364 S.W.3d at 903.

A person commits murder when he (1) intentionally or knowingly causes

the death of an individual or (2) intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an

individual. Tex. Penal Code Ann. § 19.02(b)(1), (2). A person acts intentionally

when he has a conscious desire to cause the result of his conduct. Id. § 6.03(a)

(West 2012). A person acts knowingly when he is aware that his conduct is

reasonably certain to cause the result. Id. § 6.03(b). A person‘s knowledge and

intent may be inferred from the ―acts, words, and conduct of the accused.‖ Hart

v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002); see Matson v. State, 819

S.W.2d 839, 846 (Tex. Crim. App. 1991).

In this case, the State introduced evidence that David was found dead

sitting in the driver‘s seat of his truck on the side of the road with two gunshots to

the left side of his head. Tire tracks alongside the driver‘s side of David‘s truck

led toward Trophy Club, where Appellant lived; the pattern of the tire tread and

the width of the tire tracks matched that of the tires on Appellant‘s truck. Mud

found on the passenger side of Appellant‘s truck was consistent with the mud

and tire tracks at the scene; blood drops found on the driver‘s side running board

of Appellant‘s truck matched David‘s DNA.

23
 In addition to evidence connecting Appellant‘s truck to the murder,

evidence also showed that the brothers had been feuding, that David had been

blackmailing Appellant, and that the two would occasionally meet on the side of

the road between Appellant‘s house in Trophy Club and David‘s house in

Denton. The murder scene was between those two places. Evidence showed

that Appellant had called David at 4:25 that afternoon and that Appellant had

used a security code to enter a business approximately eight miles from the

murder scene less than one hour before David‘s body was found in his truck on

the side of the road. After Appellant was stopped by Ranger Murphree and

Investigator Kish the following morning, he commented that he knew David‘s

truck contained ―paperwork‖—a print out of an email David had sent Appellant—

evidencing the feud between the brothers. During the stop, Appellant wiped a

spot on his truck just above where David‘s blood was found. A .38-caliber

handgun found in a creek between the murder scene and Appellant‘s house

belonged to Appellant‘s wife; a business friend of Appellant‘s testified that he had

once seen Appellant carry a .38-caliber handgun in his truck and that Appellant

had said it belonged to his wife. The ammunition found in the gun was of the

same type as that found in David‘s body, and evidence was presented that the

bullets found in David‘s body had been fired from that gun.

Viewing the evidence in the light most favorable to the verdict, we hold that

any rational trier of fact could have found the essential elements of murder

24
beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789

(1979); Wise, 364 S.W.3d at 903. We overrule Appellant‘s fourth issue.

VI. SPEEDY TRIAL

In his fifth issue, Appellant argues that he was denied his right to a speedy

trial. This right is constitutionally guaranteed. U.S. Const. amend. VI; Tex.

Const. art. I, § 10; see Barker v. Wingo, 407 U.S. 514, 515, 92 S. Ct. 2182, 2184

(1972); Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002). In

determining whether a defendant has been denied this right, a court must

balance four factors: (1) length of the delay; (2) reason for the delay; (3)

assertion of the right; and (4) prejudice to the accused. Barker, 407 U.S. at 530,

92 S. Ct. at 2192; Johnson v. State, 954 S.W.2d 770, 771 (Tex. Crim. App.

1997). While the State has the burden of justifying the length of delay, the

defendant has the burden of proving the assertion of the right and showing

prejudice. Cantu v. State, 253 S.W.3d 273, 280 (Tex. Crim. App. 2008).

The Barker test is triggered by a delay that is unreasonable enough to be

―presumptively prejudicial.‖ Doggett v. United States, 505 U.S. 647, 652 n.1, 112

S. Ct. 2686, 2691 n.1 (1992); Murphy v. State, 280 S.W.3d 445, 451 (Tex.

App.—Fort Worth 2009, pet. ref‘d). Depending on the nature of the charges, a

post-accusation delay of about one year is ―presumptively prejudicial‖ for

purposes of the length-of-delay factor. Doggett, 505 U.S. at 652 n.1, 112 S. Ct.

at 2691 n.1; Orand v. State, 254 S.W.3d 560, 566 (Tex. App.—Fort Worth 2008,

pet. ref‘d). If the accused shows that the interval between accusation and trial

25
has crossed the threshold dividing ―‗ordinary‘‖ from ―‗presumptively prejudicial‘‖

delay, then the court must consider, as one factor among several, the extent to

which that delay stretches beyond the bare minimum needed to trigger judicial

examination of the claim. Zamorano v. State, 84 S.W.3d 643, 649 (Tex. Crim.

App. 2002) (quoting Doggett, 505 U.S. at 652, 112 S. Ct. at 2690–91).

Here, Appellant was arrested on June 22, 2007, and the trial began on

August 22, 2011. The delay of over four years between his arrest and his trial

weighs in his favor and triggers an analysis of the remaining Barker factors. See,

e.g., Shaw v. State, 117 S.W.3d 883, 890 (Tex. Crim. App. 2003) (holding delay

of thirty-eight months weighed heavily in appellant‘s favor).

Appellant was indicted two months after his arrest. Although there were

multiple trial settings where the case was passed to a later date, the record does

not show that the State sought any continuances; however, Appellant requested

and received two continuances of the trial. The second Barker factor—the

reasons for the delay—weighs only slightly, if at all, in Appellant‘s favor. See

Murphy, 280 S.W.3d at 453 (stating that ―delay which is attributable in whole or in

part to the defendant can weigh against the defendant and may even constitute a

waiver of a speedy trial claim‖) (citing Barker, 407 U.S. at 529, 92 S. Ct. at 2191–

92).

Appellant never asserted his right to a speedy trial at trial; he raised it for

the first time on appeal. Although he did not forfeit this right by not raising it at

trial, his failure to assert it makes it difficult for him to prove that he was denied a

26
speedy trial. See Zamorano, 84 S.W.3d at 651 (―[A] failure to assert the right

makes it difficult for a defendant to prove that he was denied a speedy trial.‖).

The third Barker factor—assertion of the right—weighs against Appellant.

Appellant asserts on appeal that there was ―the possibility‖ of his defense

being impaired as a result of the delay and asserts, generally, ―dimming

memories‖ and ―loss of exculpatory evidence‖ as possible impairments. The

possibility that the defense will be impaired is the most serious interest that the

speedy trial right is intended to protect. Barker, 407 U.S. at 532, 92 S. Ct. at

2193; see also Doggett, 505 U.S. at 654, 112 S. Ct. at 2692; Dragoo v. State, 96

S.W.3d 308, 315 (Tex. Crim. App. 2003). A showing of actual prejudice is not

required; however, a defendant must make a prima facie showing of prejudice

caused by the delay of the trial. State v. Munoz, 991 S.W.2d 818, 826 (Tex.

Crim. App. 1999). Appellant has not made a prima facie showing here, and the

final Barker factor—prejudice caused by the delay—does not weigh in his favor.

See Murphy, 280 S.W.3d at 455 (finding minimal prejudice when appellant

testified that she had trouble remembering things but did not testify how this

might impair her defense); cf. Puckett v. State, 279 S.W.3d 434, 441 (Tex.

App.—Texarkana 2009, no pet.) (finding prejudice where appellant showed

witnesses with relevant testimony were unavailable).

The Barker factors, balanced together, weigh against finding a speedy trial

violation. See 407 U.S. at 534, 92 S. Ct. at 2194 (no speedy trial violation

because defendant not seriously prejudiced by five-year delay between arrest

27
and trial and defendant wanted dismissal of charges, not speedy trial); Dragoo,

96 S.W.3d at 315 (no speedy trial violation because defendant demonstrated no

serious prejudice by more than three-year delay between arrest and trial and

waited until just before trial to assert right); Phipps v. State, 630 S.W.2d 942, 946

(Tex. Crim. App. 1982) (no speedy trial violation when defendant demonstrated

no prejudice by four-year delay between arrest and trial and defendant waited

until one month before trial to assert right). We overrule Appellant‘s fifth issue.

VII. JURY ARGUMENT

In his sixth issue, Appellant argues that the State improperly commented

on defense counsel‘s effective assistance during the State‘s closing argument at

the guilt-innocence stage by referring to objections made by defense counsel

during trial. Appellant does not point out the exact comment he is complaining

of, but based on his arguments on appeal and a review of the record, we assume

Appellant is complaining of the following statement by the State:

[THE STATE]: . . . [T]he blood on the truck is his brother‘s.
Remember all the objections, all the dialog about –

[DEFENSE COUNSEL]: (Overlapping) Objection. Objection,
Your Honor. It is improper for him to – to talk about the objections
by either side.

THE COURT: Sustained. Sustained.

[DEFENSE COUNSEL]: Instruction to the jury . . . to
disregard that and not draw any inference from the fact that he has
maligned me for making objections.

THE COURT: I‘ll say to the jury: You have been instructed,
and it is in the charge, that you are not to infer anything by any

28
 rulings as to offered evidence. Whether it is admitted or not
admitted, you are not to draw any inferences therefrom.

The trial court then denied Appellant‘s motion for a mistrial.

To be permissible, the State‘s jury argument must fall within one of the

following four general areas: (1) summation of the evidence; (2) reasonable

deduction from the evidence; (3) answer to argument of opposing counsel; or

(4) plea for law enforcement. Felder v. State, 848 S.W.2d 85, 94–95 (Tex. Crim.

App. 1992), cert. denied, 510 U.S. 829 (1993); Alejandro v. State, 493 S.W.2d

230, 231 (Tex. Crim. App. 1973).

When a trial court sustains an objection and instructs the jury to disregard

but denies a defendant‘s motion for a mistrial, the issue is whether the trial court

abused its discretion by denying the mistrial. Hawkins v. State, 135 S.W.3d 72,

76–77 (Tex. Crim. App. 2004). Only in extreme circumstances, when the

prejudice caused by the improper argument is incurable, i.e., ―so prejudicial that

expenditure of further time and expense would be wasteful and futile,‖ will a

mistrial be required. Id.; see also Simpson v. State, 119 S.W.3d 262, 272 (Tex.

Crim. App. 2003), cert. denied, 542 U.S. 905 (2004). In determining whether a

trial court abused its discretion by denying a mistrial, we balance three

factors: (1) the severity of the misconduct (prejudicial effect); (2) curative

measures; and (3) the certainty of conviction absent the misconduct. Hawkins,

135 S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998)

(op. on reh‘g), cert. denied, 526 U.S. 1070 (1999).

29
 A mistrial may be required when a prosecutor attacks a defendant ―over

the shoulders of his counsel‖ by calling defense counsel‘s comments ―lies‖ or

referring to defense counsel‘s objections as ―frivolous.‖ See Bell v. State, 614

S.W.2d 122, 123 (Tex. Crim. App. [Panel Op.] 1981); Anderson v. State, 525

S.W.2d 20, 22 (Tex. Crim. App. 1975). But, here, the State‘s argument did not

go that far; the State‘s referring the jury to ―all the objections‖ and dialog about

the blood spatter was not a direct allegation that counsel had acted improperly by

objecting to that evidence. Cf. Fuentes v. State, 664 S.W.2d 333, 335 (Tex.

Crim. App. [Panel Op.] 1984) (holding prosecutor‘s comments that defense

counsel was acting in bad faith and arguing ―a bunch of garbage‖ warranted

reversal). The trial court immediately sustained defense counsel‘s objection and

instructed the jury not to make any inferences from the court‘s rulings on

evidence offered at trial, and the jury charge instructed the jury similarly.7 We

presume the jury followed these instructions absent evidence to the contrary.

7
The jury charge instructed,

At times throughout the trial the Court has been called upon to
pass on the question of whether or not certain offered evidence
might properly be admitted. You are not to draw any inferences from
them. Whether offered evidence is admissible is purely a question
of law. In admitting evidence to which an objection is made, the
Court does not determine what weight should be given such
evidence; nor does it pass on the credibility of the witness. As to
any offer of evidence that has been rejected by the Court, you, of
course, must not consider the same; as to any question to which an
objection was sustained, you must not conjecture as to what the
answer might have been or as to the reason for the objection.

30
See Hutch v. State, 922 S.W.2d 166, 172 (Tex. Crim. App. 1996). Furthermore,

we have already detailed the sufficiency of the evidence to support Appellant‘s

conviction. See Hawkins, 135 S.W.3d at 77 (balancing the certainty of conviction

in harm analysis).

We hold that any harm caused by the complained-of argument was cured

by the trial court‘s instruction to disregard and that, consequently, the trial court

did not abuse its discretion by denying Appellant‘s motion for mistrial. See id. at

76–77. We overrule his sixth issue.

VIII. CONCLUSION

Having overruled Appellant‘s six issues, we affirm the trial court‘s

judgment.

SUE WALKER
JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: April 25, 2013

31