Gray, Robert James Jr.

PD-1536-15 PD-1536-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 11/24/2015 12:54:53 PM
Accepted 11/24/2015 4:18:53 PM
ABEL ACOSTA
COURT OF CRIMINAL APP EALS CLERK

PD- -15

Robert James Gray v. State of Texas
On Discretionary Review from
No. 05-14-00919-CR
Fifth Court of Appeals, Dallas
On Appeal From No. 062757
15th Judicial District Court, Grayson County

M o t i o n t o E x t e n d Ti m e t o F i l e
Petition for Discretionary Review

John Hunter Smith
707 W. Washington
Sherman, Texas 75092
Tel. (903)-893-8177
Fax (903)-892-0916
jsmith@wynnesmithlaw.com
Te x a s B a r N o . 2 4 0 2 8 3 9 3

Kristin R. Brown
18208 Preston Road
Dallas, Texas 75252
Phone: 214-446-3909 November 24, 2015
Fax: 214-481-4868
kbrown@idefendd^.com
Te x a s B a r N o . 2 4 0 8 1 4 5 8

Attorneys for Appellant
To the Honorable Justices of the Court of Criminal Appeals:

Appellant Robert James Gray moves for an extension of time of 30 days to

file a petition for discretionary review:

1. On November 18, 2015, in Robert James Gray v. The State of Texas,

05-14-00919-CR, 2015 Tex. App. LEXIS 11847 (Tex. App. Dallas, Nov. 18, 2015)

(memorandum opinion), the Court of Appeals affirmed the trial court's judgment

of conviction against Appellant. See attached.

2. The petition for discretionary review is due December 17, 2015.

3. For good cause. Appellant asks for an extension of 30 days, until

January 16, 2016, to file the petition for discretionary review.

4. No previous extension to file the petition for discretionary review has

been filed.

5. Appellant relies on the following facts as good cause for the requested

extension: undersigned counsel Kristin R. Brown is currently working on a Brief

on a Motion to Vacate Sentence under 28 U.S.C. § 2255 in Ex Parte Michael

Carroll in 3:15-cv-03521-N, Northern District of Texas, currently due on

November 30, 2015.

6. Further, Ms. Brown has the following briefs, petitions for

discretionary review, or other pleadings due soon:

2
 • Appellant's Original Brief in David Wayne Cahill v. State of
Texas^ 5th Court of Appeals, due December 4, 2015.
• Appellant's Original Brief in Jorge Luis Ceja v. State of Texas, 8th
Court of Appeals, due December 7,2015.
• Appellant's Reply Brief in James Kirvin v. State of Texas, 5th
Court of Appeals, due December 3, 2015

• Appellant's Reply Brief in Cathy Lea Bates v. State of Texas, 5th
Court of Appeals, due December 3, 2015.
• Appellant's Reply Brief in James Duval v. State of Texas, 7th
Court of Appeals, due December 18,2015.

7. In addition, Ms. Brown is preparing for oral arguments in Henry

Harrell v. The State of Texas, 05-15-00133-CR, in front of the Fifth District Court

of Appeals on December 8, 2015.

8. Finally, Ms. Brown will also be in trial December 9-10, 2015.

9. Attorney John Hunter Smith has the following briefs, petitions for

discretionary review, or other pleadings due soon:

• Appellant's Reply Brief in James Kirvin v. State of Texas, 5th
Court of Appeals, due December 3, 2015
• Appellant's Reply Brief in Cathy Lea Bates v. State of Texas, 5th
Court of Appeals, due December 3, 2015.

10. In addition, Mr. Smith will be in trial in one of the following cases

the week of December 7,2015:

• Cause No. 063935; State of Texas v. Marcus Aurelius Rasor,

397th District Court, Grayson County, Texas;
3
 • Cause No. 2013-1-1342; State of Texas v. Kendall Jo Thompson,

County Court at Law # 1, Grayson County, Texas;

• Cause No. 2014-2-1262; State of Texas v. Emily Rose Northern,

in County Court at Law #2, Grayson County.

11 .This Motion is not filed for purposes of delay, but so that justice may

be served.

Prayer

Appellant prays that this motion for extension of time to file the PDR be

granted.

Respectfully submitted.

The Law Office of Kristin R. Brown, PLLC
18208 Preston Road
Dallas, Texas 75252
Phone: 214-446-3909
Fax: 214-481-4868
kbrown@idefenddfw.com
Texas Bar No. 24081458
Attorney for Appellant

By: Rnstm K. Brown

Wynne & Smith
707 W. Washington
Sherman, Texas 75092
Tel. (903)-893-8177

4
 Fax (903)-892-0916
jsmith@wynnesmithlaw.com
Texas Bar No. 24028393

/s/ John Hunter Smith
By: John Hunter Jimith

C e r t i fi c a t e o f S e r v i c e

I certify that on November 24, 2015, a true and correct copy of this
document was served on Karla Baugh-Hackett of the Grayson County District
Attorney's Office, Appellate Division, by email to baughk@co.grayson,t^.us and
o n L i s a M c M i n n , t h e S t a t e P r o s e c u t i n g A t t o r n e y, b y e m a i l t o
Lisa.McMinn@spa.texas.gov, and John Messinger, Assistant State Prosecuting
Attorney, by email to john.messinger@spa.state.tx.us. See Tex. Rule App. Proc.
9.5 (2015) and 68.11 (2015).

/nstin
by: K^'nstm K. Brown

5
No Shepard's Signal™
As of: November 24. 2015 1:39 PM EST

Gray v. State
Court of Appeals of Texas, Fifth District, Dallas
November 18, 2015, Opinion Filed

No. 05-14-00919-CR

Reporter
2015 Tex. App. LEXIS 11847

ROBERT JAMES GRAY, JR., Appellant v. THE STATE OF Judgment affirmed.
TEXAS, Appellee
LexisNexis® Headnotes
N o t i c e : P L E A S E C O N S U LT T H E T E X A S R U L E S O F
A P P E L L AT E PROCEDURE FOR C I TAT I O N OF
Criminal Law & Procedure > > Standards of Review >
UNPUBLISHED OPINIONS.
Substantial Evidence > SufTiciency of Evidence

Prior History: [♦!] On Appeal from the 15th Judicial Criminal Law & Procedure > ... > Standards of Review >

District Court, Grayson County, Texas. Trial Court Cause Deferential Review > Credibility & Demeanor Determinations

No. 062757.
HNl When an appellant challenges the sufficiency of the
evidence to support a conviction, the appellate court reviews
C o r e Te r m s all the evidence In the light most favorable to the verdict to
determine whether any rational trier of fact could have
pillow, trial court, interview, injuries, causation, kid, jury found the essential elements of the offense beyond a
charge, indictment, strips, seizure disorder, profile, blood, r e a s o n a b l e d o u b t . E v i d e n c e i s s u f fi c i e n t i f t h e i n f e r e n c e s
camouflage, omission, gagging, bruises, hogtied, murder, necessary to establish guilt are reasonable based upon the
mouth, egregious, exhibits, sheet, pillowcases, breathing, cumulative force of all the evidence when considered in the
cases, disabled individual, offenses, causing death, overrule,
light most favorable to the verdict. If the evidence is
binding conflicting, the appellate court presumes that the factfinder
resolved the conflicts in favor of the prosecution' and defers
Case Summary to that determination.

Overview Criminal Law & Procedure >... > Standards of Review > Abuse
of Discretion > Evidence
HOLDINGS: [1]-The State presented sufficient evidence
that defendant's actions caused the victim's death; [2]-The HN2 A trial court's decision to admit or exclude evidence is

State did not use or elicit perjured evidence and did not viewed under an abuse of discretion standard. A trial court
mislead the jury by failing to discuss the two additional abuses its discretion when its decision lies outside the zone

pillow cases nor did the State argue that there was only one of reasonable disagreement.
pillow case; [2]-Defendant did not suffer egregious harm
from the trial court's oral instruction regarding when an Criminal Law & Procedure >... > Obstruction of Administration
omission constituted an offense; [3]-Defendant did not of Justice > Peijury > Elements
suffer harm from the instruction on causation appearing in
the abstract section but not in the application paragraphs; HN3 A person commits the offense of peijury if, with intent
[4]-The amended indictment did not charge an additional or to deceive and with knowledge of the statement's meaning,
different offense; [5]-Evidence of extraneous offenses at the he makes a false statement under oath or swears to the truth

punishment phase of trial was properly admitted; [6]-The of a false statement previously made and the statement is
trial court properly admitted the three oral statements by required or authorized by law to be made under oath, Tex.
defendant and his motion to suppress was properly denied. Penal Code Ann. ^ i7.02{a) (2011). A conviction procured
through the use of false testimony is a denial of due process
Outcome guaranteed by the federal constitution. A due process
 Page 2 of 15
2015 Tex. App. LEXIS 11847. *1

violation may arise not only through false testimony application paragraphs apply the law to the facts. Errors
specifically elicited by the State but also by the State's concerning the application paragraph are reviewed under
failure to correct testimony it knows to be false. The Tex. Code CrinK Prov. Ann, art. 36.19. as applied in
Almanza.
knowing use of false testimony violates due process when
there Is a reasonable likelihood that the false testimony
affected the outcome. Under the applicable standard, the Criminal Law & Procedure > ... > Standards of Review > De
Novo Review > Conclusions of Law
applicant has the burden to provide by a preponderance of
the evidence that the error contributed to his conviction or
Criminal Law & Procedure > ... > Indictments > Contents >
punishment. Sufficiency of Contents

Criminal Law & Procedure > ... > Standards of Review > HN7 When reviewing a trial court's decision to deny a
Harmless & Invited Error > Jury Instructions motion to quash an indictment, the appellate court applies a
de novo standard of review because the sufficiency of the
HN4 When the appellate court claims of jury charge errors,
indictment is a question of law. An indictment is sufficient
it first decides whether there was error in the charge. If there
was error and appellant objected to the error at trial, then when it charges the commission of the offense in ordinary
and concise language in such a manner as to enable a person
only "some harm'' is necessary to reverse the trial court's
of common understanding to know what is meant, and with
judgment. If, however, the appellant failed to object at
trial—as in this case—then appellant will obtain a reversal that degree of certainty that will give the defendant notice of
only if the error is so egregious and created such harm that the particular off"ense with which he is charged, Tex. Code
he has not had a fair and impartial trial—in short egregious Crim. Proc. Atm. art. 21.11 (2009).
harm. Egregious harm is the type and degree of harm that
affects the very basis of the case, deprives the defendant of Criminal Law & Procedure > ... > Indictments > Amendments

a valuable right, or vitally affects a defense theory. In & Va r i a n c e s > A u t h o r i z e d A m e n d m e n t s

making an egregious harm determination, the actual degree
H N S Te x . C o d e C r i m . P r o c . A n n , a r t . 2 S . I 0 ( a } ( 2 0 0 6 )
of harm must be assayed in light of the entire jury charge,
the state of the evidence, including the contested issues and provides that after notice to the defendant, a matter of form
or substance in an indictment or information may be
weight of probative evidence, the argument of counsel and
amended at any time before the date the trial on the merits
any other relevant information revealed by the record of the
trial as a whole. Egregious harm is a difficult standard to commences. Article 28.10 also provides that an indictment
meet and must be determined on a case-by-case basis. may not be amended over the defendant's objection as to
form or substance if the amended indictment charges the
defendant with an additional or different off'ense or if the
Criminal Law & Procedure > ... > Standards of Review >
Harmless & Invited Error > Jury Instructions substantial rights of the defendant are prejudiced.

HNS The first Almanza factor requires consideration of the Criminal Law & Procedure > ... > Indictments > Amendments
entire jury charge. The second Almanza factor involves the & Va r i a n c e s > A u t h o r i z e d A m e n d m e n t s

state of the evidence, including the contested issues and
HN9 The Texas Court of Criminal Appeals has held that a
weight of the probative evidence. The third Almanza factor
different offense means a different statutory offense.
involves the argument of counsel. The final Almanza factor
addresses any other relevant information revealed by the
Criminal Law & Procedure > ... > Standards of Review > Abuse
record of the trial as a whole.
of Discretion > Evidence

Criminal Law & Procedure > ... > Jury InsUuctions > Particular
HNIO A trial court's decision to admit or exclude evidence
Instructions > Elements of Offense
is viewed under an abuse of discretion standard. A trial court
Criminal Law & Procedure > ... > Standards of Review > abuses its discretion when its decision lies outside the zone
Harmless & Invited Error > Jury Instructions of reasonable disagreement.

HN6 The function of a jury charge in a criminal trial is to Evidence > Admissibility > Conduct Evidence > Prior Acts,
instruct the jury on the law applicable to the case. The Crimes & Wrongs
charge consists of an abstract portion and the application
paragraphs. While the abstract portion serves as a glossary H N l l Te x , C o d e C r i m . P r o c . A n n , a r t . 3 7 . 0 7 . $ 3 ( a )

to help the jury understand the terms and concepts, the provides that evidence may be offered by the state and the
 Page 3 of 15
2015 Tex. App. LEXIS 11847, *1

defendant as to any matter the court deems relevant to remaining children moved to Denison, Texas together. In
sentencing including, but not limited to, evidence of an October 2011, Holly, Brandon and Sabastian moved to
extraneous crime or bad act that is shown beyond a California to be with appellant. All four of them moved back
reasonable doubt by evidence to have been committed by to Denison in November 2012 and lived with Holly's aunt
the appellant. for about a month before moving into their own home in
Denison. During the evening of January 7 or morning of
Criminal Law & Procedure > ... > Standards of Review > De January 8, 2013, fifteen-year old Brandon was found
Novo Review > Motions to Suppress unresponsive and not breathing. Appellant was indicted for
Crinunal Law & Procedure > ... > Standards of Review > the murder of Brandon and pleaded not guilty. A trial then
Deferential Review > Credibility & Demeanor Determinations commenced with over twenty-five witoesses testifying for
the prosecution and defense.
HN12 The appellate court applies a bifurcated standard of
review of a trial court's ruling on a motion to suppress by A. Paramedic and Police Testimony
giving almost total deference to the trial court's
determinations of fact and reviewing de novo the trial Juan Ortiz and Damon Morris, firefighters/paramedics with
court's application of law. the Denison Fire Department, responded to a 911 call
reporting a fifteen-year old who was not breathing. When
Ortiz and Morris arrived, appellant was walking out the
Judges: Before Justices Lang, Evans, and Whitehill.
door and told them "he's breathing." Ortiz testified that he
walked in the front door to see a fifteen-year old male lying
Opinion by: DAVID EVANS
lifeless on the floor and Holly sitting [*3] in a chair. Morris
testified he saw a person laying on his back on the floor with
Opinion his shirt lifted up, bruises all over and mouth all bruised up.
After finding no pulse, Ortiz examined Brandon and noticed
MEMORANDUM OPINION his face had heavy bruising, ligature marks on his wrist, and
rigor mortis had set in. Ortiz also testified that Brandon had
Opinion by Justice Evans blood coming from his mouth, a black eye, and multiple
bruises on the face. Morris testified that Brandon's body
Appellant Robert James Gray, Jr. appeals from the judgment was cold and he reiterated that rigor mortis had set in. Ortiz
adjudicating him guilty of murder. In six issues, appellant told his captain to notify the police because he suspected
asserts that: (1) the evidence is legally insufficient to foul play due to the amount of trauma on the body. Ortiz
support die conviction; (2) he was denied due process of law asked appellant what happened and appellant stated that
when the trial court denied his motion to strike and
Brandon was involved in an altercation with his younger
overruled his objection to certain evidence; (3) the trial
sibling. Ortiz further testified that because it takes two to
court improperly charged the jury; (4) the trial court diree hours for rigor mortis to set in, it was not possible for
improperly denied his motion to quash the State's amended Brandon to have been breathing when Ortiz arrived at the
indictment; (5) the trial court improperly allowed evidence s c e n e .

of extraneous offenses for purposes of punishment
enhancement; and (6) the trial court improperly denied his Isaac Bates, a Denison police officer, responded to the crime
motion to suppress evidence. Deciding against appellant's scene at the request of the Denison EMS. Officer Bates
aiguments, we affirm the trial court's judgment. testified that appellant told him that Brandon's facial
injuries were caused by falling off the air mattress onto the
1. Background floor because of a seizure. Officer Bates [»4] did not find
this to be plausible because die mattress would have held
Holly White had three children—Brandon, Sabastian, and Brandon only six to eight inches off the floor. Officer Bates
Carita. Brandon was diagnosed with attention deficit testified that Brandon looked like he had been involved in

hyperactivity disorder (ADHD), bipolar disorder, mental an assault because of the facial injuries and that he had
retardation, and autism. In 2008, Brandon's head collided cigarette bums on his hands. When Officer Bates asked
with Carita's head during a car [*2] accident. Carita died again what had caused Brandon's facial injuries, appellant
from her injuries and Brandon suffered a skull fracture then stated that Brandon had fallen and hit his face on the
which caused him to suffer from seizures. After the accident. bar in the kitchen. Officer Bates also testified that he saw
Holly met appellant In 2010, appellant. Holly, and her appellant smoking.
 Page 4 of 15
2015 Tex. App. LEXIS 11847, *4

Seigeant Bill Hayth, a sergeant in the criminal investigation swelling on his right hand, appellant told Detective Mackay
division of the Denison police department, assisted with the that the injury had resulted from different causes during the
crime scene. He noticed that appellant's knuckles on his interview—moving a ceiling fan, doing car work, or a
hand were swollen, and his hand was subsequently preexisting injury. Appellant also admitted to gagging
photographed. Sergeant Hayth testified that he witnessed Brandon when he yelled and screamed. Detective Mackay
the following markings on Brandon's body: (1) laceration in noted that appellant kept contradicting and changing his
the comer of his mouth; (2) blood on his mouth; (3) swollen story. [»7] Both interviews were played for the jury and
lips; (4) contusion above his right eye; (5) raw skin on both entered into evidence.
shoulders; (6) lacerations on his wrists; (7) bruising on the
legs and ankles; and (8) other bruises and lacerations. B. Medical Evidence

John Watt, a detective in the Denison police department, On Brandon's first day of school in 2010, he was angry,
also reported to the crime scene. Appellant informed cursing, hitting, and biting. In October 2010, the Denison
Detective 1*51 Watt that Brandon had been aggressive and Independent School District referred Brandon to Dr. Vernon
having seizures and that he was staying with Brandon while Johnson, a child and adolescent psychiatrist, for a psychiatric
the mother slept Appellant also informed Detective Watt evaluation. The school and Dr. Johnson agreed that Brandon
that he found Brandon dead. Detective Watt testified that w o u l d r e c e i v e h o m e b o u n d s t u d i e s a n d D r. J o h n s o n
Brandon's bedding, pillow, pillowcases, and white fabric prescribed medication for Brandon's agitation. At trial. Dr.
Johnson testified that he concurred with the diagnosis of the
strips were collected, preserved, and sent to the lab.
autistic disorder as well as some of the symptoms of the
Kyle Mackay, a detective in the Denison police department, ADHD and bipolar and that the diagnosis of mental
t e s t i fi e d a b o u t t w o i n t e r v i e w s h e c o n d u c t e d w i t h retardation was justified from the prior testing. At the time
appellant—one at 6:00 a.m. on January 8, 2013, and one of Brandon's death, Dr. Johnson testified that Brandon was
after appellant's arrest on January 9, 2013. On January 8, functioning at the level of a three or four-year old. He
2013, appellant told Detective Mackay that Brandon was further testified that children with these illnesses often
getting worse from lack of medication and that they had to suffer from severe anxiety symptoms and respond to fear
tie him up. During the interview, appellant admitted to with exaggerated behavior and that placing a child with
hogtying and gagging Brandon over the two days leading up these symptoms in restraints would exacerbate their
to his death and even on the date of death. Appellant denied, condition. Dr. Johnson further noted that putting a child who
however, that Brandon had been bound at the time of his suffers from seizures in a hogtied position and gagging him
death. Appellant did admit that he was the last one to see would put tremendous [»8] stress on his body. Dr. Johnson
Brandon alive. Detective Mackay testified that he was also testified that Brandon met the criteria for the legal
trained—in both the military and as a police officer—to definition of a disabled person.
never put anyone in the hogtie position because the person
Dr. Joni McClain, the medical examiner, testified about
is not able to breath properly and could die. Detective
Brandon's autopsy and his cause of death. Dr. McClain
Mackay also observed [*6] that appellant's knuckle on his
testified that Brandon was five feet tall, weighed ninety-eight
right hand was swollen from what appeared to be offensive
wounds from hitting something. Detective Mackay noted pounds, and was severely dehydrated. Dr. McClain
that appellant did not have any injuries on his face, head, concluded that Brandon had suffered pre-mortem injuries
chest, neck, shoulders, stomach, chin or back despite his including evidence of ligature marks on his wrists and
allegation that he had to defend himself from a violent child. ankles, gag markings, injuries inside the mouth, and injuries
all over the body. Dr. McClain testified that positional
Appellant also admitted to Detective Mackay that he
restrained Brandon in the middle of the night when Holly asphyxiation is when you get in a position that makes it
was not present. difficult to breathe and could result from being hogtied and
gagged. Dr. McClain testified that the following evidence
Detective Mackay also interviewed appellant after his arrest was indicative of positional asphyxiation and ligature
on January 9, 2013, and noted that appellant's knuckle bindings: (1) pattem of abrasion of wrists and ankles; (2)
appeared more swollen and a bruise had begun to form. brush bum abrasions ("carpet bum") on Brandon's front
Detective Mackay testified that appellant had a wound on body and face which is indicative of stmggling; (3) recent
his left thumb and bruising across his forearm and up to his hemorrhage of the cheeks (from binding); (4) recent injury
biceps. Appellant told Detective Mackay that he got these to the lips (from binding); and (5) petechial hemoniiages of
injuries when he was tying up Brandon. In regard to the the eye (blood vessels bursting around the eyes when the
 Page 5 of 15
2015 Tex. App. LEXIS 11847, *8

body is not getting enough air). Brandon [*9] also had three Brandon. Ruiz concluded Brandon's DNA profile matched
blunt force injuries on his head which Dr. McClain testified unknown male one and appellant's DNA profile matched
could not have happened in a single fall but likely occurred u n k n o w n m a l e t w o . T h e r e f o r e , R u i z c o n fi r m e d t h a t
around the same time. Brandon also had injuries to his ear, Brandon's DNA was found on the blood stains from the
nose, chest, hip, back, ribs, buttocks, as well as injuries on floral twin fitted sheet, the camouflage sheet, and the white
his fingers consistent with a cigarette bum. Brandon's fabric strips. The swabbing of these strips identified the
toxicology report detected the presence of antiseizure DNA profiles of Brandon and appellant.
m e d i c a t i o n . D r. M c C l a i n c o n c l u d e d t h a t B r a n d o n ' s c a u s e o f

death was homicidal violence including positional asphyxia D. Other Testimony
and ligature binding.
Rafael Murguia, an inmate serving a prison sentence in the
C. DNA Evidence federal penitentiary, testified about conversations he had
with appellant when they served time together. Murguia
Uyen Henson, a quality assurance specialist for the Texas testified that appellant told him that he moved in with a lady
Department of Public Safety Crime Laboratory, testified and two kids and one of the kids was sick. Murguia further
about the evidence she analyzed in this case. Henson tested testified that appellant told him that the lady quit giving the
nine stains on a floral twin fitted sheet from the couch that sick kid his medicine so the kid was kicking, screaming and
were positive for blood, and was able to obtain one DNA trying to bite everyone. Appellant then said he tied the kid
profile (unknown male one) from a stain on top of the sheet. up and the kid kept screaming so he got a cushion to [*12]
Henson also tested a camouflage-colored sheet from the quiet him up. When the kid got quiet, appellant went to
couch and four stains on this sheet tested positive for blood. sleep. Murguia testified that appellant told him that when
Henson determined the blood stains on bodi sheets contained
appellant got up to check on the kid the next day that the kid
the same DNA profile (unknown male one). Henson also was cold and not moving and he called the paramedics.
tested the three fabric strips found on the kitchen table. Murguia testified that, although he did not receive a plea
Henson tested the strips for blood [»10] and DNA. In deal for his testimony, he came forward because it was the
addition, Henson swabbed the edges of the strips for "hand right thing to do and appellant showed no remorse.
delivered DNA" which would identify "whoever would
have possibly held the strips or tied the strips." Each of the Leann Williams, Holly's aunt, testified that appellant. Holly,
strips had areas that tested positive for blood and the DNA and Holly's sons had lived with her on two separate
analysis confirmed the blood had the same profile as the occasions. Holly, appellant and the kids moved back to
sheets. When the edge of the first strip, exhibit 67A, was Denison in late October 2012 and lived with Williams for

swabbed, Henson identified the same DNA profile as found about a month. Williams stated that Brandon was not a
on die sheets as well as one as well as another DNA profile dangerous child and not laige for his age as he was only
(unknown male two). Henson swabbed the second and third about one hundred pounds. Williams testified that Brandon's
strips, exhibits 67B and 67C, and a fourth strip, exhibit 81, seizures were mild and not violent In late December 2012,

again identified the same two DNA profiles. Henson tested Williams testified that Holly and appellant were arguing
the blood stains on exhibit 71 A, a half sheet from the over whether Brandon should be placed in a facility—Holly
parent's closet, and the DNA profile of a stain was consistent wanted to keep Brandon home and appellant wanted him
with unknown male one. Finally, Henson also examined placed in a facility.
exhibits 64A and 64B, the purple pillow and camouflage
Holly testified that she, appellant and her children moved
piUow case, for DNA evidence. The pillow was covered by
back to Texas on November 1, 2012. Holly stated that she
three pillow cases, the camouflage pillow case being the one
refilled Brandon's prescriptions right [*13] before they left
on the outside. Henson tested three stains on the camouflage
California and that the medications should have lasted
pillow case and two were positive for blood.
anywhere from thirty-five to forty-three days. Holly testified
Gloria Ruiz, a forensic scientist in the DNA section of the that she did not go to the Texas Medicaid office during the
Texas Department of Public Safety Crime [*11] Laboratory, time period of November 1, 2012 through January 7,
also analyzed the DNA evidence in this case. Ruiz analyzed 2013—a time period of approximately sixty-nine days.
a saliva specimen from appellant and blood and hair Accordingly, at the time of his death. Holly testified that
specimens from Brandon. Ruiz also analyzed the DNA from Brandon had been withdrawing off his medications for a
the camouflage pillow case and the DNA profile was week or two. Holly testified that she did apply for Brandon
consistent with a mixture of DNA from appellant and to receive Texas Medicaid on January 7, 2013. Holly
 Page 6 of 15
2015 Tex. App. LEXIS 11847, *13

testified that between 12 a.m. and 12:30 a.m. in the morning the course of committing a felony, to-wit: Aggravated
of January 8, 2013, she woke up appellant and asked him to Assault, Injury to a Disabled Individual, or Unlawful
come sit with Brandon because Brandon did not want to Restraint, and said death of Brandon White was caused

sleep. Holly admitted to helping appellant tie up Brandon while the defendant was in the course of and in

and that she had lied to the police when she told them that furtherance of or immediate flight from the commission
appellant had never hogtied Brandon. Holly also admitted or attempt of said felony.
that in January 2013 her relationship with appellant was
"getting rockier" over Brandon because appellant wanted to 2. Standard of review

place him in a home. She stated that two or three days
before Brandon died, they started hogtying Brandon. Holly Appellant contends the evidence is insufficient to support a
also testified that she left Brandon with appellant on January finding of guilt for the offense of felony murder. HNl When
7, 2013, and when she returned she [*14] noticed that an appellant challenges the sufficiency of the evidence to
Brandon had injuries including a knot on his head, and support a conviction, we review all the evidence in the light
marks on his lips, above his eye, and on his wrist. She stated most favorable to the verdict to determine whether any
rational trier of fact could have found the essendal elements
that appellant told her that Brandon had a seizure and fell
and hit the bar between the dining room and kitchen. Holly of the offense beyond a reasonable doubt. Wise v. State. 364
testified that on the night of Brandon's death, Brandon S.W.^d 900. 90J ('lex. Crim. App. 2012). Evidence is
would not calm down and was screaming. She confirmed sufficient if "the inferences necessary to establish [*16] guilt
that although they had run out of Brandon's behavioral are reasonable based upon the cumulative force of all the
medication, he still had his antiseizure medication on the evidence when considered in the light most favorable to the
day of his death. Holly testified that appellant woke her up verdict.'' Id. If the evidence is conflicting, we "'presume that
and said "I think something is wrong with Brandon." t h e f a c t fi n d e r r e s o l v e d t h e c o n fl i c t s i n f a v o r o f t h e

prosecution' and defer to that determinadon." Id. (quoting
E. Judgment and Punishment Jackson v. Virviitia. 443 U.S. .^07. 326, ^9 S. Ct. 27^!. 61 L
Ed. 2d 560 {1979\).
The jury found appellant guilty of murder as alleged in the
indictment. Following the punishment hearing, appellant 3. Analysis
was sentenced to ninety years' imprisonment. Appellant
then fded this appeal. Appellant argues that the State failed to present sufficient
evidence at trial that appellant's actions caused Brandon's
11 . A n a l y s i s death. We disagree.

A. The Evidence Was SuraciENT to Support the CoNvicnoN
Ortiz, a paramedic, testified that when he arrived upon the
scene that Brandon was dead and that rigor mortis had set
in. He also told his captain to notify the police because he
1. Indictihent
suspected foul play due to the amount of trauma on the
The amended indictment alleged the charge of felony body. Both he and his fellow paramedic/firefighter, Morris,
murder as follows: tesdfied that Brandon's body was heavily bmised. Ortiz
specifically testified that Brandon had blood coming from
Robert James Gray. Jr., hereinafter called "Defendant,'' his mouth, a black eye, and multiple bruises on the face, and
did then and there commit or attempt to commit an act Morris noted that Brandon had ligature marks on his wrists.
clearly dangerous to human life, to-wit: by tying up Sergeant Hayth testified that he witnessed the following
Brandon White, by gagging Brandon White, by placing markings on Brandon's body: (1) laceration in the comer of
Brandon White in what is commonly [*151 referred to his mouth: (2) blood on his mouth; (3) swollen lips; (4)
as a hogtied position or similar position, by leaving contusion above his right eye; (5) raw skin [*17] on both
Brandon White unattended while tied-up, by striking shoulders; (6) lacerations on his wrists; (7) bruising on the
Brandon White, by causing blunt force trauma to legs and ankles; and (8) other bruises and lacerations.
Brandon White, by impeding Brandon White's normal Appellant gave the police and paramedics various and
breathing by applying pressure to the victim's neck or inconsistent explanations for Brandon's heavy bruising and
by blocking the victim's nose or mouth, or by any injuries including: (1) Brandon had an altercation with his
combination of the preceding, that caused the death of brother; (2) Brandon fell off the air mattress and onto the
Brandon White and the defendant was then and diere in floor because of a seizure; or (3) Brandon had fallen and hit
 Page 7 of 15
2015 Tex. App. LEXIS 11847, *17

his face on the bar in the kitchen. Both Sergeant Hayth and fabric strips used for gagging; and (3) the camouflage
Detective Mackay testified that appellant had swollen pillow case. The DNA tests confirmed that the blood stains
knuckles. Detective Mackay testified that appellant's injuries on the sheets matched Brandon's DNA profile. The blood
appeared to be offensive wounds from hitting something. stains on the camouflage pillow case had a DNA profile
When Detective Mackay asked about the cause of his consistent with a mixture of DNA from appellant and
swollen knuckles, appellant again gave inconsistent Brandon. In addition, the blood stains on the fabric strips
explanations during his interview. were tested and the DNA analysis confirmed the blood
matched Brandon's DNA [♦20] profile. The fabric strips
Brandon's mother. Holly, testified that on the night of were also swabbed for 'liand delivered DNA" which would
Brandon's death, Brandon would not calm down and was
identify "whoever would have possibly held the strips or
screaming. She further testified that she woke up appellant tied the strips." The swabbing located the presence of two
and asked him to come sit with Brandon. Appellant admitted DNA profiles—Brandon and appellant.
in his interviews that he was the last person to see Brandon
alive. Appellant told Detective Hayth that Brandon had been In addition, Murguia, an inmate serving a prison sentence in
aggressive the night of his death. Detective Mackay testified, the federal penitentiary, testified about conversations he had
[»18] however, that appellant did not have any injuries on with appellant when they served time together. Murguia
his face, head, chest, neck, shoulders, stomach, chin or back testified that appellant told him that he moved in with a lady
despite his allegation that he had to defend himself from a and two kids and one of the kids was sick. Murguia further
violent child. Appellant also admitted to restraining Brandon testified that appellant told him that the lady quit giving the
in the middle of the night on January 8, 2013, when Holly sick kid his medicine so the kid was kicking, screaming and
was not present. Holly admitted that she and appellant trying to bite everyone. Appellant then said he tied the kid
began tying up Brandon in the hogtied position a few days up and the kid kept screaming so he got a cushion to quiet
before his death. Appellant also admitted to hogtying and him up. When the kid got quiet, appellant went to sleep.
gagging Brandon over the two days leading up to his death Mui^uia testified that appellant told him that when appellant
as well as on the date of death. got up to check on the kid the next day that the kid was cold
and not moving and he called the paramedics.
Dr. McClain, the medical examiner, testified that Brandon
had suffered pre-mortem injuries including evidence of When considered in the light most favorable to the verdict,
Ugamre marks on his wrists and ankles, gag markings, the facts in this case were sufficient to support a conviction
injuries inside the mouth, and injuries all over the body. Dr. for murder as alleged in the indictment—that one or more
McClain testified that positional asphyxiation is when you actions by the appellant, [*21] namely by tying up Brandon,
get in a position that makes it difficult to breathe and could by gagging Brandon, by placing Brandon in what is
result from being hogtied and gagged. Dr. McClain testified conunonly referred to as a hogtied position, by striking
that the following evidence was indicative of positional Brandon, by causing blunt force ti^uma to Brandon, by
asphyxiation and ligature bindings: (1) pattern of abrasion impeding Brandon's normal breathing by applying pressure
of wrists and ankles; (2) brush bum abrasions ("carpet to the victim's neck or by blocking the victim's nose or
bum'O on Brandon's front body and face which is indicative mouth, or by any combination of the proceeding, caused
[»19] of stmggling; (3) recent hemorrhage of the cheeks Brandon's death. We overrule appellant's first issue.
(from binding); (4) recent injury to the lips (from binding);
and (5) petechial hemorrhages of the eye (blood vessels B. The Motion to Strike Was Properly Denied
bursting around the eyes when the body is not getting
enough air). Brandon also had three blunt force injuries on Appellant asserts that the State committed prosecutorial
h i s h e a d w h i c h D r . M c C l a i n t e s t i fi e d c o u l d n o t h a v e misconduct by actively eliciting peijured testimony from
happened in a single fall but likely occurred around the Detective Watt regarding evidence seized from the scene of
same time. Brandon also had injuries to his ear, nose, chest, Brandon's murder and that the evidence introduced by
hip, back, ribs, buttocks, as well as injuries on his fingers Detective Watt should have been stricken.
consistent with a cigarette bum. Dr. McClain concluded that
Brandon's cause of death was homicidal violence including 1. Additional facts

positional asphyxia and ligature binding.
During trial, the State called Detective Watt who testified
TTie police recovered the following items for DNA testing: that he collected a pillow with a camouflage pillow case and
(1) sheets from the couch where Brandon was sleeping; (2) initially placed the pillow into a trash bag because he did not
 Page 8 of 15
2015 Tex. App. LEXIS 11847, *21

have an evidence bag large enough to contain it. The pillow according to the DPS crime lab, there was three
was later transferred to a paper sack so it would dry. pillowcases.
Detective Watt specifically testified that he did not remove
State: Your Honor it's already been admitted, the
the pillow case from the pillow but collected it as it was,
predicate laid. He collected the pillow that was inside
preserved it and sent it off to the lab. [*22] The State moved
t o a d m i t E x h i b i t s 6 4 A ( p i l l o w ) , 6 4 B ( c a m o u fl a g e multiple pillowcases. The camo pillow was on the
outside. It was the only one with relevant DNA
pillowcase), and 64 (bag). Appellant's counsel objected and evidence on it. It's on the outside. So we just didn't
asked to take the wimess on voir dire. Counsel asked
admit the other two pillowcases that were found. The
Detective Watt about the presence of additional pillow cases
DNA people are going to testify that they pulled those
on the pillow. Detective Watt replied that he sent the pillow
out one by one. So, Mr. Smith, you know if he had
In its original state to the lab and did not pull it apart or
objections to this, the time to voice them was when we
check to see how many pillow cases were on the pillow.
entered the exhibits. It's already been admitted and the
Counsel withdrew his objection and the court admitted the
three exhibits. predicate laid.

Appellant's counsel: [*24] Your Honor -- Your Honor,
During appellant's cross-examination of Detective Watt, I did admit my objection at that time. I did say three
counsel again asked him about the additional pillow cases: pillowcases. This witness, who is the sponsoring
witness, indicated there wasn't [sic] any other
Appellant's counsel: You didn't know what was pillowcases. He's the case agent. We do now know
undemeath that camouflage pillowcase? there was [sic] two others. This was a deliberate attempt
to mislead the jury.
Detective Watt: No.

State: Absolutely not. Your Honor. All three of us met
Appellant's counsel: According to this -- according to at the Denison Police Department and went over this.
the crime lab, there was two other pillowcases on that
pillow, correct? Appellant's counsel: I object

D e t e c t i v e W a t t : Yo u w o u l d h a v e t o a s k t h e m . Court: Counsel, this goes to weight, not admissibility.
I'll overrule the objection.
Appellant's counsel: Okay. But when you collected
these items. Item Number 3, they weren't separated, 2. Standard of review
were they?
HN2 A trial court's decision to admit or exclude evidence is
Detective Watt: No, I did not separate them. v i e w e d u n d e r a n a b u s e o f d i s c r e t i o n s t a n d a r d . To r r e s v .

Appellant's counsel: Okay. But here today you have Stare. 71 S.WJd 7.5.V. 760 (Tex. Crim. App. 2002). A trial
court abuses its discretion when its decision lies outside the
separated these items before this jury, correct?
zone of reasonable disagreement. Green v. State, 934 S. W.2d
Detective Watt: The camo one is there, and other ones 9 2 . J 0 2 ( Te x . C r i m . A n n . { 9 9 6 1
are in the box. I»23]

3. Analysis
Appellant's counsel: Right. But that's not how it was
collected?
Appellant argues that the State engaged in willful misconduct
Detective Watt: No. by making a conscious effort to deceive the court and the
jury by presenting 'Tialf-truths" regarding the pillow and the
Appellant's counsel: Your Honor, we would move to pillowcases. Specifically, appellant argues that the State
strike State's Exhibit 64A and 64B. It is not a true and
deliberately misled the court and jury by introducing exhibits
correct ... we would ask that this item be removed 64A and 64B as if those two made the whole of exhibit 64,
from evidence. They have failed to provide all - a clear even though the two additional pillow cases were not
chain of what this exhibit is. He's acknowledged this is mentioned, and that [*25] it did so through perjured
where it is. We would ask that it would be removed at
testimony. We disagree.
this time. If they can further follow it up with the DNA
analyst. But there has been -- this document — this item HN3 A person commits the offense of perjury if, with intent
is not correct as how it was discovered and that's even to deceive and with knowledge of the statement's meaning.
 Page 9 of 15
2015 Tex. App. LEXIS 11847, *25

he makes a false statement under oath or swears to the truth Appellant asserts that the trial court committed reversible
of a false statement previously made and the statement is error by reading language on omission and by not including
required or authorized by law to be made under oath. See other language regarding causation. We disagree.
7/x Pi:\:\t. CoDi: Aw. 'b' }7.02{a) (West 2011). A conviction
1. Additional facts
procured through the use of false testimony is a denial of
due process guaranteed by the federal constitution. See Ex
t y g r w G h a h r c m a m , S . W ' . ^ d 4 7 0 , 4 7 7 { Te x . C v i t n . A n n .
Following the conclusion of the trial, the trial court conferred
with counsel regarding the jury charge. Appellant objected
2011). A due process violation may arise not only through
to the trial court's wording of the instruction on causation
false testimony specifically elicited by the State but also by
and requested that the following language be included:
the State's failure to correct testimony it knows to be false.
Id, The knowing use of false testimony violates due process
As it relates to causation we would object to the Court's
when there is a reasonable likelihood that the false testimony
Charge and we specifically request the following charge
affected the outcome. Id. at 478. Under the applicable
which is contained on page five of our proposed charge
standard, the applicant has the burden to provide by a
and throughout. But I would read into the record we
preponderance of the evidence that the error contributed to
respectfully request the Court the State has the burden
his conviction or punishment See Ex narte Chahot. 300
of proving that the defendant caused the death of
76{i, 77} {Tfx. Criin. Af)i). 2QW).'
Brandon White, to prove that the defendant caused the
death of [*28] Brandon White. The State must show
Here, appellant has numerous obstacles to overcome. First,
beyond a reasonable doubt one of the following. One, a
the State did not use or elicit perjured evidence. Detective
seizure disorder did not contribute to the death of
Watt repeatedly testified that when he collected the pillow
Brandon White or, two, a seizure disorder was clearly
for evidence, the camouflage pillowcase was on the outside
insufficient by itself to cause the death of Brandon
of the pillow. He also consistently stated that he was
White, Or three, the conduct of the defendant was
unaware if additional pillow cases existed beneath the
clearly sufficient to cause the death of Brandon White
camouflage pillow case. Further, when appellant specifically
regardless of the seizure disorder. If you all agree the
asked Detective Watt about the two additional pillow cases,
State has failed to prove beyond a rea.sonable doubt one
he told appellant's counsel that he would have to ask the
or more of the elements of one, two and three above, we
crime lab about any additional pillow cases. Appellant fails
will next consider. It goes on for each one of each of the
to cite any evidence indicating that Detective Watt knew
offenses in this case.
about the additional pillow cases or testified inaccurately.
Second, the State did not mislead the jury by failing to
Appellant argued that the instruction for causadon should be
discuss the two additional pillow cases nor did the State
individually applied to the facts in each application
argue that there was only one pillow case. Instead, the State paragraph. The trial court overruled appellant's objections
concentrated on the camouflage pillow case because it was to the charge regarding causation. Although the trial court
"the only one with relevant DNA evidence on it." At trial,
did include an instruction on causation in the jury charge, it
the State argued that appellant and Brandon's blood was on
did not include the causation instruction in each of the
the camouflage pillow case and this was consistent with the
application paragraphs. The instruction read as follows:
State's theory that appellant smothered Brandon's [»27I
bloody face with the pillow. Finally, there is no evidence A person is criminally responsible if the result
that this alleged "error" contributed in any way to appellant's (Brandon's death) would not have occurred but for his
conviction.
conduct, operating either alone or concurrently with
another cause (seizure disorder), [»29] unless the
For the reasons discussed above, the trial court did not abuse concurrent cause (seizure disorder) was clearly sufficient
its discretion in denying appellant's motion to strike and to produce the result (Brandon's death) and the conduct
overruling appellant's objections to the admission of of the actor clearly insufficient
evidence. We overrule appellant's second issue.
Appellant's counsel also objected to the phrase "by act or
C. The Jury Charge Was Proper omission" in the jury charge as it related to injury to a

' The court in Chabot also recognized that an unknowing use of peijured testimony could create a due process claim. Because there
is no evidence of any false testimony in this case, however, we do not reach the issue of whether 1*26] the State had intent to deceive.
 Page 10 of 15
2015 Tex. App. LEXIS 11847, *29

disabled individual. The court agreed to omit this language to injury to a disabled individual. The written charge,
from the jury charge and the phrase "by act or omission" did however, clearly removed any mention of the phrase "by act
not appear in print in the final jury charge. However, the or omission" as it related to injury to (»31] a disabled
trial court read the following paragraph on omission aloud individual. Here, appellant did not make an objection after
to the jury: the trial court read the charge and, therefore, appellant must
show that such error amounted to egregious harm. Almanza.
An omission that causes serious bodily injury, serious 686 S.W.2d at 171. With these principles in mind, we will
mental deficiency, impairment or injury or bodily proceed to conduct a harm analysis using the Almanza
f a c t o r s . S e e D o u e h e r t v S t a t e . 1 8 8 S . W. 3 d 6 7 0 . 2 0 0 6 \ V L
injury to a disabled individual is conduct constituting
an offense if the actor has a legal duty to act or the actor 475H02. at (Tex. Crim. App. 2006) (per curiam) (not
has assumed care, custody or control of the disabled designated for publication) (reversing appellate court that
did not conduct analysis using all Almanza factors).
individual.

HNS The first Almanza factor requires consideration of the
Appellant's counsel did not make an objection after the entire jury charge. See Almanza. 686 S.W.2d at 171. Here,
court read this statement or after the court completed its
as stated above, the jury charge removed any mention of the
reading of die whole jury chaise, phrase "by act or omission" as it related to injury to a
disabled individual. Accordingly, the charge as a whole does
2. Standard of review
not weigh in favor of egregious harm. See Medina v. State.
7 .S.WJd 6.U. 640 (Tex. Crim. App. 1999).
HN4 When we review claims of jury charge errors, we first
decide whether there was error in the charge. Ferguson v.
The second Almanza factor involves the state of the evidence,
Stare, S.W.Jd 676. 6S4 ( Te x . Ann.—Houston (I4th
including the contested issues and weight of the probative
DistJ 201L tto pet.). If there was error and appellant evidence. See Almanza. 686 S.W.2d at 171. As analyzed
objected to the error at trial, then only "some harm" is above in appellant's first issue, we have already determined
necessary to reverse the [*30] trial court's judgment. See that the facts were sufficient for the jury to have convicted
AlmanTa u State. 686 S.W.2d 157, 171 (Tex. Crim. App.
appellant of murder. As such, the state of the evidence does
1985) (op. on reh'g). If, however, the appellant failed to not favor a finding of egregious harm.
object at trial—as in this case—then appellant will obtain a
reversal "only if the error is so egregious and created such The third Almanza factor involves the argument of counsel.
harm that he 'has not had a fair and impartial trial'—in short See Almanza. 686 S.W.2d at 171. In 1*323 the State's
'egregious harm.'" Id. Egregious harm is the type and closing argument, we are unable to find any reference to
degree of harm that affects the very basis of the case, how an omission constitutes an offense. Instead, the State
deprives the defendant of a valuable right, or vitally affects discussed how the actions of appellant caused Brandon's
a defense theory. Allai v. State. 25.? S.W.M 260. 264 (Te.x. death. The argument of counsel does not favor a finding of
Crim. App. 2008). In making an egregious harm egregious harm.
detennination, "the actual degree of harm must be assayed
in light of the entire jury charge, the state of the evidence, The final Almanza factor addresses any other relevant
including the contested issues and weight of probative information revealed by the record of the trial as a whole.
evidence, the argument of counsel and any other relevant S e e A l m a n z a . 6 8 6 S . W. 2 d a t 1 7 1 . W e h a v e n o t f o u n d a n d

information [revealed] by the record of the trial as a whole." appellant has not pointed to any utterance before the jury at
Treio >•. State. 2iS0 5. 25.S'. 26J (Tex. Crim Ann. 2009) any stage of the trial about any omission by appellant
(quotinz Almanza. 686 S.W.2d at 171). Egregious harm is a causing Brandon's death other than the trial court's reading
d i f fi c u l t s t a n d a r d t o m e e t a n d m u s t b e d e t e r m i n e d o n a an instruction about omission when it read the charge of the
case-by-case basis. See Ellison State. 86 S.W.Bd 226. 227 court. We are not aware of "any other relevant information"
(Tex. Crim. App. 2002). that we should consider. The final Almanza factor does not
favor a finding of egregious harm.
3, Analysis
Thus, in light of the Almanza factors, we are unable to
conclude that appellant suffered egregious harm from the
(a) Omission
trial court's oral instruction regarding when an omission
Appellant first argues that the trial court committed reversible constitutes an offense. Accordingly, we overrule the part of
error when it read aloud language on omission as it relates appellant's third issue regarding the "omission" language.
 Page 11 of 15
2015 Tex. App. LEXIS 11847. *32

(b) Causation The second Almanza factor involves the state of the evidence,

including the contested issues and weight of the probative
Appellant next argues that the trial court erred by failing to evidence. See Almanza. 686 S.W.2d at 171. In order for die
include his application paragraph on causation t*33] because jury to believe appellant's theory, diey would have [*35]
he did not receive the benefit of the instruction as required had to believe that Brandon's seizure disorder alone was

by sc'cdon 6.04 of the Texas Penal Code. We disagree. clearly sufficient to produce his death and the conduct of
appellant was clearly insufficient. The evidence, as analyzed
HN6 The function of a jury charge in a criminal trial is to above in appellant's first issue, did not support this
instruct the jury on the law applicable to the case. See conclusion. As such, the state of the evidence does not favor
Dinkifts r. Snue. S94 S.W.ld S30, .^^9 {Tex. Criin. App, a finding of some harm.
7995). The charge consists of an abstract portion and the
application paragraphs. See De^rate r. Stcae. 86 75L The third Almanza factor involves the argument of counsel.
7 5 2 ( Te x . A n n . — W a c o 2 0 0 2 . n e t r e f d . ) . W h i l e t h e a b s t r a c t See Almanza. 686S.W.2dat 171. Here, the State specifically
portion serves as a glossary to help the jury understand the discussed the causation paragraph in the jury charge during
terms and concepts, the application paragraphs apply the its closing argument:
law to the facts. Id. Errors concerning the application
paragraph are reviewed under article 36.19, as applied in Now you have a causation paragraph in the jury charge.
Almanza. Id. at 753. And there is some language here about operating alone
or concurrentiy with another cause.
Here, the abstract portion of the jury charge contained a
But if you believe that Brandon had a seizure disorder
correct instruction on causation according to section 6.04 of
which either caused his death or contributed to his
the Texas penal code and it applied the facts to the case:
death to find the defendant not guilty, you have to do
two things. You have to find that the concurrent -- that
A person is criminally responsible if the result the seizure disorder was clearly sufficient to cause the
(Brandon's death) would not have occurred but for his death and you have to find that the defendant's conduct,
conduct, operating either alone or concurrently with i.e. binding him, gagging him, doing all of those things
another cause (seizure disorder), unless the concurrent
were clearly insufficient.
cause (seizure disorder) was clearly sufficient to produce
the result (Brandon's death) and the conduct of the The evidence shows that Brandon died from these acts

actor clearly insufficient. clearly dangerous to human life but if you will say that
seizure disorder contributed, you have [*36] to find that
The application paragraphs of the jury charge, however, those things were not sufficient and that the seizure
made no reference to appellant's theory that Brandon's disorder was clearly sufficient. So you have to do those
seizure disorder caused his deadi. To the extent that this two things.
constitutes ''error" [*34] in die charge, we proceed with a
determination of whether sufficient harm resulted from this Thus, the State applied the abstract instruction on causation
to the facts in its closing argument to the jury. Similarly,
alleged error to require reversal. See Almanza. 686 S.W.2d
at 171.^ appellant's counsel explained the causation instruction to
the jury in his closing argument:
The first Almanza factor requires consideration of the entire
jury charge. See Almanza. 686 S.W.2d at 171. Here, as Third, if you find that he committed an act clearly
stated above, the jury charge included an instruction on dangerous to human life and that was in the scope of
causation which applied the facts of the case and tracked the you still have to find beyond a reasonable doubt that
language of section 6.04. Further, this instrucdon appeared that act caused the death of Brandon White. So what

direcdy before all of the application paragraphs. Accordingly, does that mean? Well, it means that he caused it. It also
the charge as a whole does not weigh in favor of some harm. means and the State has to prove to you that the seizure
See Medina. 7 S.W.Sd at 640. disorder or one of the other medical disorders or mental

^ The Slate argues that appellant failed to preserve this issue on appeal because appellant did not specifically object that the trial court
failed to apply the instrucdons for causadon to the facts in this case or that the causation language should be charged in each application
paragraph. However, as appellant did raise an objection to the court's causation instruction in the trial court below, we will apply the
"some harm" standard and not the "egregious harm" standard.
 Page 12 of 15
2015 Tex. App. LEXIS 11847, *36

d i s o r d e r s t h a t B r a n d o n s u f f e r e d f r o m w a s i n s u f fi c i e n t by placing him in what is commonly referred to as a
by itself to cause Brandon's death. Insufficient. hogtied position or similar position, by leaving him
unattended while tied-up, or by any combination of the
You have to find that or you have to find that Robert's
c o n d u c t w a s s u f fi c i e n t t o c a u s e B r a n d o n ' s d e a t h e v e n preceding, that caused the death of Brandon White and
the defendant was then and there in the course of
with those things. If the State can't prove one of those
two things, Robert can't be found guilty of murder. committing a felony, to-wit: Aggravated Assault, Injury
to a Disabled Individual, or Unlawful Restraint, and
Certainly not if they have to show you. They have to
said death of Brandon White was caused while the
prove to you beyond all reasonable doubt.
defendant was in in the course of and in furtherance of

Therefore, appellant's counsel reiterated that appellant (»37] or immediate flight from the commission or attempt of
could only be found guilty if the State proved that Brandon's said felony.
s e i z u r e d i s o r d e r w a s i n s u f fi c i e n t t o c a u s e B r a n d o n ' s d e a t h
On January 2, 2014, appellant filed a motion to quash the
and appellant's conduct was sufficient to cause Brandon's
indictment which alleged, among other things, that the
death. Thus, the argument of counsel does not favor a
indictment lacked specificity and failed to provide appellant
finding of some harm.
with sufficient notice. On May 14, 2014, the State filed a
The final Almanza factor addresses any other relevant motion to amend the indictment. The [*39] State requested
information revealed by the record of the trial as a whole. that it be allowed to change the pronoun "him" in count one
See Almanza. 686 S.W.2d at 171. We are not aware of "any to "Brandon White" and by adding additional manner and
other relevant information'' that we should consider. means language. The new language proposed by the State in
count one is indicated with italics;
Thus, in light of the Almanza factors, we are unable to
conclude that appellant suffered any harm from the trial commit or attempt to conmiit an act clearly dangerous
court's instruction on causation appearing in the abstract to human life, to-wit: by tying up Brandon White, by
section but not in the application paragraphs. Accordingly, gagging Brandon White, by placing Brandon White in
we overrule the part of appellant's third issue regarding the what is commonly referred to as a hogtied position or
"causation" language. similar position, by leaving Brandon White unattended
while tied-up, by striking Brandon White, by causing
D. The Motion to Quash Was Properly Denied blunt force trauma to Brandon White, by impeding
Brandon White's normal breathing by applying pressure
Appellant asserts that the trial court conmiitted reversible to the victim's neck or by blocking the victim's nose or
error when it denied his motion to quash the State's
mouth, or by any combination of the preceding, that
amended indictment because appellant was prejudiced by caused the death of Brandon White and the defendant
the changes to the indictments. was then and there in the course of conmiitting a felony,
to-wit: Aggravated Assault, Injury to a Disabled
1. Additional facts
Individual, or Unlawful Restraint, and said death of
Brandon White was caused while the defendant was in
The original indictment was filed with the trial court on
the course of and in furtherance of or immediate flight
March 6, 2013, and included seven counts: (1) murder; (2)
from the commission or attempt of said felony.^
aggravated assault causing serious bodily injury with a
deadly [»38] weapon-family violence; (3) manslaughter; (4)
On May 14, 2014, the trial court granted the State's motion
aggravated assault causing serious bodily injury; (5) injury
to amend and denied [*40] appellant's motion to quash. On
to a disabled individual; (6) unlawful restraint; and (7)
unlawful restraint of an individual under the age of May 27,2014, appellant filed a second motion to quash and
seventeen. Count one of the indictment alleged as follows: exception to form and substance of the amended indictment.
Appellant argued that the amended indictment (1) chained
commit or attempt to commit, an act clearly dangerous him with an additional or different offense, (2) changed the
to human life, to-wit: by tying him up, by gagging him, manner and means of how he committed the offense, and (3)

^ Appellant conceded at a pretrial hearing that replacing the pronoun "him" with the victim's name was not a substantial change.
Accordingly, the only language at issue is the addition of the following phrase to the murder allegation: 'liy striking Brandon White, by
causing blunt force trauma to Brandon White, by impeding Brandon White's normal breathing by applying pressure to the victim's neck
or by blocking the victim's nose or mouth."
 Page 13 of 15
2015 Tex. App. LEXIS 11847, *40

prejudiced his substantia] rights. On June 12, 2014, the thai E. The Extraneous Offense Was Properly Admitted
court denied appellant's second motion to quash. Appellant's
trial commenced on June 23, 2014. Appellant asserts that the trial court committed reversible
error when it allowed the State to introduce evidence of
2. Standard of review extraneous offenses at the punishment phase of trial.

HN7 When reviewing a trial court's decision to deny a 1. Additional facts
motion to quash an indictment, we apply a de novo standard
of review because the sufficiency of the indictment is a Prior to the punishment phase of the trial, the State offered
question of law. See State v. Moff, 154 S.W.3d 599. 601 (Tex. two "pen packets" (exhibits 196 (two burglaries and a
Crhn. App. 2004). An indictment is sufficient when it
robbery) and 197 (DUI with injury and possession of
charges the commission of the offense [*41] in ordinary and cocaine)) to prove up appellant's prior convictions to
concise language in such a manner as to enable a person of
enhance the punishment range. Appellant objected to the
common understanding to know what is meant, and with
exhibits because: [*43] (1) the pen packets failed to
that degree of certainty that will give the defendant notice of
e s t a b l i s h t h a t c e r t a i n o f f e n s e s r e s u l t e d i n fi n a l c o n v i c t i o n s
the particular offense with which he is charged. See Tex.
or were the result of valid waivers of jury trial; (2) the pen
Cook Cmm. Phoc. Aw. art. 21.11 (West 2009).
packets were missing fingerprint cards: or (3) the State
could not establish the statutes under which appellant was
3. Analysis
convicted were still valid or constitutional. The State argued
H N S A r t i c l e 2 8 . 1 0 o f ( h e Te x a s C ( y ( J e o f C r i m i n a l P r o c e d u r e that the exhibits were "certified pen packs" and were
provides that after notice to the defendant, a matter of form self-authenticating. The trial court removed some
or substance in an indictment or information may be documentation from exhibits 196 and 197 but admitted the
amended at any time before the date the trial on the merits remainder of the documents subject to the State's ability to
commences. See Ti:\. Codf Ckiu. Pkqc. A\\. art. 2S.I0ia} prove them up in front of the jury.
(West 2006). Article 28. JO also provides that an indictment
may not be amended over the defendant's objection as to 2. Standard of review
form or substance if the amended indictment charges the
defendant with an additional or different offense or if the HNIO A trial court's decision to admit or exclude evidence

substantial rights of the defendant are prejudiced. Id. at i s v i e w e d u n d e r a n a b u s e o f d i s c r e t i o n s t a n d a r d . W i l l i a t t j s v.

28.10(cl State. 30} S.W.^d 675. 6(S7 (Tex. Crim. At)p. 2009) {"A trial
court's ruling on the admissibility of extraneous offenses is
Appellant argues that he was prejudiced by the amended reviewed under an abuse of discretion standard."); Torres v.
indictment because it chained an additional offense and State. 71 S.\V..^d 75H. 760 (Tex. Crim. App. 2002). A trial
changed the manner and means of how appellant allegedly court abuses its discretion when its decision lies outside the
committed the offense. We disagree. First, the amended zone of reasonable disagreement. Green v. State. 934 S. W.2d
indictment did not charge an additional or different offense. 92. }()2 (Tex. Crim. App. 1996).
HN9 The Texas Court of Criminal Appeals has held that a
different offense means a different statutory offense. Flow 3. Analysis
ers 1'. State. .S75 S.\V.2d 724. 72H (Tex. Crim. App. 1991).
Here, the State amended language within the murder count Appellant argued that the trial court erred in admitting
but [*42] did not add a new statutory offense. Second, we
appellant's extraneous offenses because the State was unable
conclude that the additional language regarding manner and to establish that: (1) certain prior offenses resulted in
means in the murder count did not prejudice appellant's convictions: (2) other convictions were the result of a valid
rights. Here, the additional manner and means language was waiver [*44] of trial by jury: or (3) the statutes under which
based on the same incident forming the basis of the original appellant was convicted were still valid or constitutional.
indictment. Id. {"U such amendment is made on the basis of
Appellant references no case law or statute in support of his
the same incident upon which the original indictment is argument.
based, it will, in most cases, be permissible under the
substantial rights provision after a review of the record for H N I l A r t i c l e 3 7 . 0 7 o f t h e Te x a . ' i C o d e o f C r i m i n a l P r o c e d u r e

prejudice,"). Appellant does not argue diat the amendment provides that evidence may be offered by the state and the
impaired his ability to prepare a defen.se. Accordingly, we defendant as to any matter the court deems relevant to
overrule appellant's fourth issue. sentencing including, but not limited to, evidence of an
 Page 14 of 15
2015 Tex. App. LEXIS 11847, *44

extraneous crime or bad act that is shown beyond a his Miranda rights prior to the interview. Detective Watt
reasonable doubt by evidence to have been committed by testified that appellant voluntarily spoke with the detectives
the appellant See Tex. Code Crjm. Proc. art. 37.07 $ 3(a). until the end of the questioning when he asserted his right to
The State, during the punishment phase, introduced pen an attorney.
packets from the California Department of Corrections
which contained abstracts of judgment for each of the prior
Officer Hayth testified that on January 8th he approached
offenses. Each abstract of judgment referenced a "date of
appellant in the back bedroom and asked him to come to the
conviction/' In addition, the State introduced the interview
police station with him. Appellant agreed to go to the police
between appellant and Detective Mackay in which appellant
station. Officer Hayth testified that appellant could have
admitted to going to prison in California for "various
declined to give a statement. Officer Hayth further testified
things" including robbery with a weapon. The State also
that appellant was not under arrest or handcuffed and that he
called Dennis Michael, an investigator with the Grayson
sat in the front of the unmarked car with him.
County District Attorney, regarding the fingerprints in this
case. Michael testified that he took appellant's fingerprints
and compared them to the fingerprints found in exhibits 196 Detective Mackay testified that he first spoke with appellant
and 197 and the exhibits [»451 contained the fingerprints of around 6:00 a.m. on January 8, 2013, at the police station.
^pellant. On the basis of the record before us, we cannot Detective [*47] Mackay testified that he told appellant that
conclude that the trial court abused its discretion in admitting he was free to leave and did not place appeUant in handcuffs
the pen packets and, accordingly, we overrule appellant's or threaten appellant This interview lasted approximately
fifth issue. an hour and a half and Detective Mackay testified that
appellant's statement was voluntarily and knowingly given.
F. The Motion to Suppress Was Properly Denied The interview was recorded. Detective Mackay also spoke
with appellant on January 9th following his arrest. This
Appellant asserts that the trial court committed reversible interview was also videotaped. Detective Mackay read him
error when it denied his motion to suppress appellant's
his Miranda warning and this was contained on the videotape.
statements to the police because they were custodial and
Appellant waived his rights and agreed to speak with him
involuntary and taken without the proper waiver of Miranda until he asserted his right to an attorney at which point the
rights.
interview ceased.

1. Additional facts
Appellant testified at the hearing that on January 8th he did
Appellant spoke with the police twice during the early not feel like he was free to leave his house or to refuse to go
morning hours of January 8,2013, and again after his arrest to the police station. Appellant testified that he was very
on January 9, 2013. On May 7, 2014, appellant filed a tired at the time of the January 8th interview. Dr. Charles
motion to suppress these oral statements. The trial court Keenan, a psychologist testified for the defense that
held a hearing on May 14, 2014, and the following
appellant was sleep deprived and stressed during the January
witoesses testified: (1) Detective Watt; (2) Officer Hayth; 8th interview and lacked the capacity at that time to
(3) Detective Mackay; (4) appellant; and (5) Dr. Keenan.
appreciate his legal situation or invoke his Miranda rights.
For this reason, Dr. Keenan concluded that appellant's
Detective Watt testified that he first made contact with
statements on January [*48] 8th were not voluntary.
appellant on January 8, 2013, at appellant's home because
he was called to the scene to investigate a suspicious death.
Detective Watt spoke with both appellant and Holly in a On June 3, 2014, the trial court agreed to suppress certain
bedroom to determine what had happened. Detective ['"46] portions of the January 8th videotaped interview relating to
Watt testified that appellant was not in handcuffs or custody. appellant's prior drug use and convictions, but denied
Detective Watt testified that he did not tell appellant that he appellant's request to suppress the statements in their
could not leave and appellant could have left out the back entirety. The trial court also made the following findings of
door of the bedroom. This initial conversation lasted fact:

approximately two and a half minutes and was recorded.
Detective Watt was also present during the January 9th
interview of appellant along with Detective Mackay.
Detective Watt testified that Detective Mackay read appellant
 Page 15 of 15
2015 Tex. App. LEXIS 11847, *48

1. Detective Mac Kay (Mac Kay) interviewed Robert 3. Both interviews and Gray's statements therein were
James Gray, Jr. (Gray) on January 9, 2013 about 6:00 voluntary.
a.m. at the Denison Police Department.'^
2. Standard of review
2. MacKay told Gray he was not under arrest nor being
detained and he was free to leave at any time. HN12 We apply a bifurcated standard of review of a trial
3. Gray said he understood that. court's ruling on a motion to suppress by giving almost total
deference to the trial court's determinadons of fact and
4. The interview lasted 1 1/2 hours.
reviewing de novo the trial court's application of law. Slate
5. Gray was not Mirandized. V. McLain. 337 S.WJd 26H. 271 (Te.x. Crim. Apn. 207/).

6. In explaining what happened Gray mentioned that he
3. Analysis
had only had a little sleep.

7. Gray never said he was too tired for die interview. The record supports the trial court's findings of fact.
Appellant agreed to speak with [*50] Detectives Watt and
8. Gray never asked to stop the interview to get any
Mackay. Appellant was not placed in handcuffs and agreed
sleep. to go to the police station to give his statement. Appellant
9. Gray never asked for a break. rode in the front seat of the unmarked police car. In regard
to the January 8,2013 interview, Detective Mackay testified
10. Gray asked for water which was provided to him.
that he told appellant that he was free to leave and did not
11. After he asked for a glass of water Gray asked the place appellant in handcuffs or threaten appellant. As for the
question. come with you?", to which MacKay Januaiy 9, 2013 interview, Detective Mackay read appellant
replied, "I will bring you a cup.'' his Miranda warnings and appellant waived his rights and
agreed to speak with the detective undl he asserted his right
12. Gray then thanked MacKay.
to an attorney at which point the interview ceased. Therefore,
13. Gray responded to MacKay's que.stions. we conclude that the trial court properly admitted the three
oral statements by appellant and we overrule appellant's
14. At the time of the interview a cause of death had not
sixth issue.
been [*49] determined.

15. Gray indicated it would show natural causes. in. Conclusion

16. MacKay said it would not show natural causes and We resolve appellant's issues against him and affirm the
that he did not think Gray was telling him everything. trial court's judgment.
17. Gray's story of what happened was consistent
/s/ David Evans
tliroughout the interview.

18. After Gray was later arrested another interview took D AV I D E VA N S

place with MacKay and Detective Watts [sic].
JUSTICE
19. Prior to the second interview Gray was given his
Miranda warnings by MacKay. Do Not Publish

20. Later in the interview Gray asked for an attorney
T k x . R . A P R P. 4 7
and the interview ceased.

Based on these findings of fact, the trial court concluded: JUDGMENT

Based on the Court's opinion of this date, the judgment of
1 . T h e fi r s t i n t e r v i e w w a s n o t c u s t o d i a l .
the trial court is AFFIRMED. Judgment entered this 18th
2. The second interview was custodial and Gray was day of November, 2015.
Mirandized.

^ The trial court's first finding of fact appears to mistakenly state January 9, 2013, when U should have been January 8, 2013.