Clarence David Mallory, Jr. v. State

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________

No. 02-17-00279-CR
___________________________

CLARENCE DAVID MALLORY JR., Appellant

V.

THE STATE OF TEXAS

On Appeal from the 297th District Court
Tarrant County, Texas
Trial Court No. 1395156D

Before Sudderth, C.J.; Gabriel and Pittman, JJ.
Memorandum Opinion by Chief Justice Sudderth
 MEMORANDUM OPINION

I. Introduction

In six points, Appellant Clarence David Mallory Jr. appeals his conviction for

capital murder. See Tex. Penal Code Ann. § 19.03(a)(2). We affirm.

II. Factual Background

In 2014, Ashlea Harris worked as an assistant manager at American Eagle at

Hulen Mall. Christopher Cravey, the manager of the store, described Harris as a

phenomenal employee who was loved by everyone and was generally regarded as “like

the mother of the store.”

In June 2014, Harris was appointed to run the store while Cravey was on

medical leave. During that time, Carter Cervantez worked at the store as an assistant

manager. Lindsay Green, another American Eagle employee, testified that she

believed that Cervantez saw Harris as her competition in trying to catch the attention

of the district manager for a promotion. Cervantez hired Mallory to work at

American Eagle. She was also in a romantic relationship with him.

Theft at American Eagle on August 24, 2014

Surveillance video from American Eagle showed that around 1:14 a.m. on

August 24, 2014, someone walked directly to the area where deposits were kept,

unlocked the deposit box, and took the deposit. The person on the video was

wearing something to cover his head and never looked up, indicating that he knew

there were security cameras in the store.

2
 The key was left in the deposit box, and it belonged to an assistant manager

named Yasmin. But Yasmin had not closed the store the night the theft occurred and

did not appear to be the person in the video.1 Instead, Cervantez had closed the store

that night. Cervantez also admitted that she had left the back door unlocked, thus

facilitating the intruder’s access to the store.

The next morning when Harris discovered that the previous day’s deposit was

missing, she called loss prevention, Cravey, and the district manager. Green called the

police and also called Cervantez to tell her that they needed “all hands on deck.”

According to Green, Cervantez responded, “I don’t know what the big deal is because

insurance can cover this.”

When Cravey arrived, he and Harris watched the video from the security

cameras, and Harris identified the person on the video as Mallory.2 Until that point,

Cravey had been unaware that Cervantez had hired Mallory to work at the store.

Mallory had previously worked at American Eagle in Amarillo and was labeled in the

American Eagle system as “non-rehireable”—meaning that he was not to be hired by

any location. When Cravey reviewed Mallory’s personnel file, he discovered that

Cravey later learned that Yasmin had left her store keys unattended on a table
1

for approximately five minutes the previous day while Cervantez was in the area
folding jeans.

Green, too, watched the videos from the security cameras and also believed
2

that the person involved in the theft was Mallory based on his physical build and
because he knew how to avoid the security cameras.
3
when Cervantez had hired Mallory, she had changed his Social Security number and

his name in the system.

After Cravey and Harris had watched the video, Harris suspended Cervantez,

who reportedly handed over her store keys calmly and exited the store. One week

after Cervantez’s suspension, Cravey called Cervantez and told her that she had been

terminated for leaving the store unsecured. Cravey testified that Cervantez was very

upset and requested the regional manager’s phone number. Cravey also testified that

he believed that Cervantez would have known that Harris had identified her as a

possible accomplice to the theft.

Cravey scheduled Mallory to work on three consecutive days, but he never

called in or showed up for work. Pursuant to American Eagle’s policy, Mallory was

automatically terminated for three consecutive “no call, no-shows.”

Thanksgiving Day and the Day of the Offense

Approximately two months later, on November 27 (Thanksgiving Day), Harris

worked from when the store opened at 6:00 p.m. until 3:00 a.m. the following day.

She arrived home from work around 3:40 a.m. on November 28.

Alexis Torres Bunch, who had been looking after Harris’s dog while she was at

work, visited with Harris at her apartment until 4:45 a.m., and Harris locked the door

when Bunch left. At 6:56 a.m., Bunch had a missed call from Harris. Two or three

minutes later when Bunch saw the missed call, she tried to call Harris back but was

unsuccessful in reaching her.

4
 Steven Lee, who lived downstairs and diagonally across from Harris, testified

that the day after Thanksgiving, he noticed a black Infiniti with a faded Toll tag sticker

on its roof that he had never seen before parked outside. When Lee left for work

around 7:30 a.m., the Infiniti was still in the parking lot.

Patrick Sweet testified that in November 2014, he lived in an apartment just

below Harris’s. On November 28, Sweet was awakened by a loud scream and glanced

at the alarm clock, which showed that it was 7:30 a.m. As Sweet laid in bed

wondering what was going on upstairs, he heard a loud thud right above him and

could hear labored breathing. While Sweet considered what he should do, he heard

Harris’s front door close. When Sweet looked out the window, he saw a darkly-tinted

black Infiniti driving away. Because that was not the vehicle that Harris usually drove,

Sweet assumed that a friend of Harris’s had picked her up for work, so he laid back

down.

But before Sweet fell asleep, his carbon monoxide detector went off. As Sweet

checked his apartment for problems, he noticed that water was dripping from the

ceiling in his bathroom. Assuming that there was a fire in Harris’s apartment, Sweet

called 911. He then took some of his belongings and moved his car across the street

away from his apartment building. Before firefighters arrived, Sweet saw a neighbor

from the back of the building and one of the maintenance men enter Harris’s

apartment. Sweet was unaware that Harris was in the apartment until later when he

5
saw the looks on the firefighters’ faces. At that point, he realized that the noises he

had heard earlier were “out of the ordinary,” and he told the police about them.

Jeff Kayser, another friend and neighbor of Harris’s, testified that he woke up

to the sound of fire alarms that same morning. He dressed and ran over to the

building where Harris lived. Harris’s pickup was parked outside, so when a neighbor

said that he thought the smoke was coming from upstairs, Kayser ran upstairs and

kicked Harris’s door open. Kayser testified that the apartment was full of smoke and

that water was spraying from the sprinkler system. Kayser yelled for Harris and

crawled midway to the kitchen before the smoke forced him back out of the

apartment and into fresh air. Kayser attempted two other times to make his way

through the apartment but was unable to do so because of the smoke. Kayser did not

make a fourth attempt because, by then, firefighters had arrived on the scene.

Fort Worth Fire Department Lieutenant Jarrod Pavlechko responded to the

fire around 8:00 a.m. When he arrived, a resident told him that there was a possibility

that someone was inside the apartment. He entered the apartment, and after

determining that the source of the smoke was the bed, he raised a window to allow

the smoke to clear. At that point, he saw the body of a female in front of the bed.

When he grabbed her arm, he noticed that her wrists were duct taped. After he was

unable to detect a pulse, he radioed a request for the police and the crime scene unit

to come to the scene.

6
The Fire Investigation

Wallace E. Hood Jr., an arson investigator with the Fort Worth Fire

Department, testified that the fire in Harris’s apartment had already been extinguished

when he arrived at the scene around 8:45 a.m. During his investigation, he located

multiple origins of the fire, including in the bed, on Harris’s body, and in the closet.

Hood noted that the smoke detector had been removed and was underneath the

mattress. Hood opined that the ignition source was some form of open flame, such

as a match or a cigarette lighter, and he ruled out all accidental sources of ignition,

concluding that the fire was set on purpose.

The Initial Police Investigation

When Detective Jerry Cedillo with the FWPD homicide unit arrived on the

scene at 10:22 a.m., he spoke with several of the residents and with Cravey. Detective

Cedillo testified that Harris’s hands and feet had been duct taped, that she had

suffered serious head trauma, that her throat had been cut, and that she had been set

on fire. Detective Cedillo wanted to search inside Harris’s pickup that was parked at

the apartments, but the keys to that vehicle were never found. After receiving

photographs of Mallory and Cervantez from Cravey and researching their names and

the black Infiniti through the FWPD databases, Detective Cedillo found that Mallory

and Cervantez were both suspects in the August 24 theft at American Eagle and that

they lived approximately two miles from Harris’s apartment.

7
 When Detective Cedillo went to the address for the apartment where Mallory

and Cervantez lived, he found a white Cadillac that belonged to Mallory. The black

Infiniti was not there at that time.

Mark Sedwick, a special agent with the FBI and a member of the Cellular

Analysis Survey Team, testified as to the content of texts that had been sent at 11:52

a.m. on November 28 between a phone associated with Mallory and a phone

associated with Cervantez:

[Her phone:] Hey, remember that thing you said I didn’t clean well?
Did you clean it? Did we leave it behind?

[His phone:] We left it. I didn’t touch it.

[Her phone:] Well, damn. That’s not good. Take out all the trash and
leave that. . . . [Five minutes elapse] . . . David, I need to take care of
that. I’m so sorry I forgot.

Suspicious Activity at Hulen Mall the Following Day

The surveillance video from the front of the American Eagle store showed that

at around 2:00 a.m. on Saturday, November 29, someone with a covered face knelt

down next to the lock on the gate and attempted to unlock and raise the gate. The

attempt was unsuccessful, however, because Cravey had already changed the locks.

Around 3:45 a.m., a black Infiniti was spotted in the parking lot of the

apartment where Mallory and Cervantez lived.

8
 Four hours later, Mallory and Cervantez exited their apartment, got in the black

Infiniti, and drove to Hulen Mall.3 Cervantez exited the car near the door of the mall,

and Mallory parked the car. Detective Cedillo called for dispatch to send marked

patrol cars to make a traffic stop of the Infiniti once a traffic violation was observed.

Detective Cedillo then went into the mall but was unable to locate Cervantez.

In the meantime, at 7:50 a.m., the surveillance video from American Eagle once

again showed a person with something covering her face4 approach American Eagle.

Cravey arrived at the store five minutes later.

When the patrol officers made contact with the Infiniti, they confirmed that the

driver was Mallory. Detective Ernie Pate with the FWPD introduced himself to

Mallory, told him that he was part of a team investigating car burglaries at Hulen Mall,

and said he wanted to know why Mallory was in the parking lot. Mallory told

Detective Pate that his girlfriend, Cervantez, had gone into the mall to pick up some

papers at Aeropostale. Mallory described Cervantez as wearing pink scrubs, even

though she had been seen wearing a gray sweatshirt and a black hat when she exited

the car. When Detective Pate asked Mallory to voluntarily go downtown to visit with

the police, Mallory agreed.

3
Mallory and Cervantez lived in an apartment on Greenwood Creek Drive,
which is off Bryant Irvin Road near Fort Worth Country Day School. Detective
Cedillo traced the route that Mallory and Cervantez took to get to the mall, which was
not far from their apartment.
4
Cravey testified that he believed the person who approached the store both
times was Cervantez.

9
 Shortly after Mallory left with the patrol officers, however, they alerted

Detective Pate that Mallory had changed his mind and wanted to return to the mall.

But after Detective Pate confirmed with the patrol officers that Mallory did not have

his driver’s license on his person despite the fact that Detective Cedillo had seen him

driving the Infiniti on a public roadway, Detective Pate decided to arrest Mallory. So

rather than being returned to the mall, Mallory was transported to the police station

downtown instead.

Detective Pate, who stayed with the Infiniti while he waited for a wrecker to

arrive, took a photo of the vehicle. When he showed it to Lee, Lee confirmed that it

was similar to the car he had seen in the apartment parking lot the previous day. The

Infiniti was towed to the FWPD impound lot and was placed in a secure bay.

Later that day, Officer Tamayo located Cervantez in the parking lot at her

apartment complex.5 When Detective Cedillo asked Cervantez to go downtown to

police headquarters to be interviewed about a case that he was working on, she

agreed. While interviewing Cervantez, Detective Cedillo also took photographs of

Cervantez, who had superficial scratches on her arms. After the interview, Detective

Cedillo allowed Cervantez to return to her apartment.

Detective Cedillo also saw Mallory in the hallway at the police station. He

initially thought Mallory was wearing a toboggan, but it turned out to be a ski mask in

5
Detective Cedillo testified that he contacted Officer Tamayo with the fugitive
unit because he “has a great deal of surveillance skills.”

10
apparently new condition (without any noticeable wear and with the plastic price-tag

fastener still attached). The photographs taken of Mallory showed that he had a fresh

injury to his lower lip, which was swollen.

Searches of Mallory and Cervantez’s Apartment

Detective Matthew Barron with the FWPD homicide unit prepared the initial

search warrant for the address where Mallory and Cervantez resided. During the

November 29 search, Detective Barron saw a plastic tub near the front door that

contained some bungee cords and some rope and a lock in a kitchen drawer. In the

trash, he found a box associated with a TASER, a charging cord, and some strands of

duct tape. Detective Barron also found a damaged deadbolt lock in the apartment.

The search of Mallory and Cervantez’s apartment also uncovered two other locks that

had apparently been used for practice, including one conveniently labeled “lock

picking practice lock.”

On December 4, Mallory and Cervantez’s apartment was searched a second

time, and a “business-type key” was found in the kitchen trash can. The key opened

the dressing room doors and a storage closet at American Eagle at Hulen Mall. The

key was not in the trash during the first search of Mallory and Cervantez’s apartment.

Search of the Black Infiniti

Officer J.J. Jeanes with the FWPD crime scene unit searched the black Infiniti.

He took photos of items that were found in the vehicle, including a plastic bag inside

a black trash bag, a sharpening stone for a knife, a nine-millimeter cartridge, a cell

11
phone, a walkie talkie, a Buck knife with a sheath, a plastic tub, some men’s boots that

had a cell phone in them, some clothing, a toboggan with a hole cut in it, a tarp still

inside the package, and a kitchen knife. Under the driver’s seat, Officer Jeanes found

a loaded Glock 19 with a bullet in the chamber. Officer Jeanes also found various

documents in the car, including a receipt reflecting an order from Lock Pickers Mall

for a cutaway practice lock that was sent to the address of the apartment where

Mallory and Cervantez lived. A lock picking instruction manual was also found

during the search of the vehicle. Officer Jeanes testified that the floor mat from

driver’s side of the vehicle revealed the possible presence of blood.

Search in Lueders, Texas, and Search of Mallory’s Cadillac

Detective Cedillo testified that after the contents of Mallory’s cell phone were

analyzed, one of the text messages on Mallory’s cell phone contained latitude and

longitude coordinates. After entering the latitude and longitude coordinates into

Google Earth, Detective Cedillo then drove to that specific location, which was near

Lueders, Texas. When he arrived at the intersection of the coordinates, he discovered

a hole, which he described as “a human grave,” that was approximately six feet long,

two and a half feet wide, and three feet deep. Detective Cedillo testified that he

obtained a search warrant to search Mallory’s Cadillac, and using the keys that were

recovered from the black Infiniti, he unlocked the Cadillac’s trunk where he found

certain items that were relevant to his investigation: two shovels, a box of plastic

sheeting, and a box of Craftsman sockets.

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The Autopsy

Dr. Richard Fries, a deputy medical examiner at the Tarrant County Medical

Examiner’s Officer, performed the autopsy on Harris’s body. The autopsy revealed

that Harris had numerous injuries:

• a laceration on the right side of her scalp;

• a small laceration with a surrounding bruise on the right side of her scalp;

• a patterned bruise on the right side of her face;

• a bruise between her eyes;

• a bruise around her left eye;

• a small laceration on the bridge of her nose;

• a laceration on her right cheek with a surrounding bruise;

• a laceration on the left side of her face;

• a scrape on the right side of her nose and upper lip;

• a bruise on her right lip;

• a scrape and lacerations of her lip;

• a scrape on her chin;

• a star-shaped laceration with a surrounding bruise behind her left ear, which

was consistent with having been pistol-whipped;

• a cut on the right side of her neck (like one caused by a knife);

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 • a bruise on the right side of her neck;

• bruises and abrasions on the left side of her neck;

• petechiae6 on her neck, eyes, and larynx;

• a bruise on the front of her chest;

• a bruise on her right arm;

• a scrape on her elbow;

• a bruise on the back of her left arm;

• a bruise on the back of her left hand;

• a bruise at the base of her left thumb, which was “likely due to the duct tape

ligatures being around [her] wrist”;7

• an abrasion on her left little finger;

• a laceration inside her upper lip extending to the frenulum;

• additional lacerations and bruising in her lower lip; and

• fractured cricoid cartilage in her larynx.

Dr. Fries testified that the injuries observed on different parts of Harris’s face

indicated that they were caused by multiple blows. Dr. Fries explained that the

petechiae in Harris’s eyes reflected asphyxia or strangulation, which could have

occurred by someone tying a cord or a rope around her neck and squeezing tightly.
6
Petechiae is defined as minute hemorrhages or purpuric spots that appear on
the skin or mucous membranes or within an organ. Webster’s Third Int’l Dictionary
1689 (2002).
7
Harris’s hands had been tied behind her back with duct tape around her wrists.
14
According to Dr. Fries, it takes quite a bit of time and quite a bit of sustained pressure

for someone to be fully asphyxiated.

Dr. Fries further testified that a fractured cricoid is “the least common place we

see fractures in asphyxia or strangulation-type deaths” because it consists of cartilage

that is pliable. He explained that cricoid fractures are seen mostly in motor vehicle

accidents or something involving a significant amount of force. The sample of

Harris’s aorta blood that Dr. Fries tested was negative for carbon monoxide, which

indicated that Harris was not alive when the fire was set. Dr. Fries did not find any

injuries on Harris’s body suggesting that a Taser had been used on her.

Dr. Fries concluded that Harris’s cause of death was asphyxia and blunt force

trauma to the head and neck and that the manner of Harris’s death was homicide.

The Duct Tape

John Witkowski, a forensic scientist in the trace evidence section at the Texas

Department of Public Safety Regional Crime Lab, analyzed duct tape that was found

in the trash can at Mallory and Cervantez’s apartment and duct tape found on Harris’s

wrists and ankles. Witkowski explained that there was no difference between the

fibers, the adhesive, the backing, the width, or the color of the duct tape found in the

trash can at Mallory and Cervantez’s apartment versus the duct tape found on Harris’s

wrists and ankles. Thus, Witkowski concluded that the duct tape found on Harris’s

wrists and ankles could have originated from the same roll as the duct tape found in

the trash can at Mallory and Cervantez’s apartment.

15
The DNA Evidence

Uvonna Alexander, a senior forensic scientist in the biology unit at the FWPD

Crime Lab, examined swabs taken from the floor mat in the Infiniti, which revealed

that the partial major DNA profile originated from Harris but that Mallory and

Cervantez were both excluded as minor contributors. The DNA profile obtained

from the swab of the grip of the Glock 19 that was found in the Infiniti was a mixture

of individuals: Harris and Mallory were included as the major contributors, but

Cervantez was excluded as the minor contributor. The DNA profile obtained from

the swab of the muzzle of the Glock 19 was a mixture of two individuals: the major

DNA profile was identified as originating from Harris; Mallory could not be excluded

as the minor contributor to the mixture; but Cervantez was excluded as the minor

contributor. The DNA profile obtained from the swab of the butt rear slide and rear

sight of the Glock 19 was a mixture of three individuals: the major DNA profile

originated from Harris; Mallory could not be excluded as the minor contributor to the

mixture; and Cervantez could not be excluded as a trace contributor to the mixture.

III. Sufficiency of the Evidence

In his first point, Mallory challenges the sufficiency of the evidence to support

his conviction. Mallory argues that there is no evidence that he killed Harris and that

Cervantez was “clearly the mastermind and is solely responsible” for Harris’s death.

16
A. Standard of Review

In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 2789 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). 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; Jenkins, 493 S.W.3d

at 599.

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; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim.

App. 2016). 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. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.

2012). 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. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). We must

presume that the factfinder resolved any conflicting inferences in favor of the verdict

and defer to that resolution. Id. at 448–49; see Blea, 483 S.W.3d at 33.

17
 The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins,

493 S.W.3d at 599.

B. Applicable Law

As applicable in this case, a person commits the offense of capital murder if he

commits murder as defined under Texas Penal Code section 19.02(b)(1) and

intentionally commits the murder in the course of committing or attempting to

commit robbery, obstruction, or retaliation. Tex. Penal Code Ann. § 19.03(a)(2). A

person commits murder, as defined under Texas Penal Code section 19.02(b)(1), if he

intentionally or knowingly causes the death of an individual. Id. § 19.02(b)(1).

A person commits the offense of robbery if, in the course of committing theft

as defined in chapter 31 of the Texas Penal Code and with intent to obtain or

maintain control of the property, he (1) intentionally, knowingly, or recklessly causes

bodily injury to another or (2) intentionally or knowingly threatens or places another

in fear of imminent bodily injury or death. Id. § 29.02(a).

A person commits the offense of obstruction or retaliation if he intentionally or

knowingly harms or threatens to harm another by an unlawful act in retaliation for or

on account of the service or status of another as a person who has reported or who

the actor knows intends to report the occurrence of a crime. Id. § 36.06(a)(1)(B).

18
 A jury need not be unanimous about the underlying offense that elevates

murder to capital murder. Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App.

1991).

Under the law of parties, a person is criminally responsible as a party to the

offense, and thus may be charged with the commission of the offense, “if the offense

is committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both.” Tex. Penal Code Ann. § 7.01(a), (b). A person is

criminally responsible for an offense committed by another if, “acting with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids,

or attempts to aid the other person to commit the offense.” Id. § 7.02(a)(2). In

determining whether a person is a criminally responsible party to an offense, the

factfinder may examine the events occurring before, during, and after the commission

of the offense which show an understanding and a common design to do the

prohibited act. See Padilla v. State, 326 S.W.3d 195, 200–01 (Tex. Crim. App. 2010).

C. Analysis

Here, the jury charge included instructions concerning the law of parties, thus

allowing the jury to convict Mallory of capital murder if it determined that he was a

principal or a party to the offense.8 See Tex. Penal Code Ann. § 7.02(a)(2), (b). The

The jury charge included the following instruction:
8

All persons are parties to an offense who are guilty of acting together in
the commission of the offense. A person is criminally responsible as a
party to an offense if the offense is committed by his own conduct, by
19
evidence demonstrated that both Mallory and Cervantez had been terminated from

the American Eagle store at Hulen Mall and that they likely knew that Harris had

named them as participants in the store’s August theft. Both Mallory and Cervantez

thus had a motive to retaliate against Harris. Because the evidence demonstrated that

extreme force was necessary to fracture the cricoid, that a great deal of sustained

pressure was necessary to fully asphyxiate someone, and that Harris was twice

Cervantez’s size,9 the jury could have reasonably concluded that an actor other than

Cervantez fractured Harris’s cricoid and asphyxiated her. Moreover, based on the

DNA evidence found on the gun and the nature of Harris’s injuries, the jury could

have believed that Mallory had used the Glock 19 that was found in Cervantez’s car to

pistol whip Harris—resulting in the blunt force trauma to her head and neck, which

was listed as a cause of death. Viewed in the light most favorable to the verdict, and

deferring to the jury’s determinations of the weight to be given the evidence and

credibility of the witnesses, the evidence supports the jury’s verdict of guilt, whether

the jury believed that Mallory was guilty as the principal actor or as a party. See Stills v.

State, No. 01-17-00170-CR, 2018 WL 4086998, at *3 (Tex. App.—Houston [1st Dist.]

the conduct of another for whom he is criminally responsible, or by
both. A person is criminally responsible for an offense committed by
the conduct of another, if acting with the intent to promote or assist the
commission of the offense, he encourages, directs, aids, or attempts to
aid the other person to commit the offense. Mere presence alone does
not constitute being a party to an offense.

Cravey testified that Cervantez and Harris may have been the same height but
9

that Harris was two times Cervantez’s size.

20
Aug. 28, 2018, no pet.) (mem. op., not designated for publication) (holding evidence

sufficient to support conviction for capital murder because evidence showed that

appellant was the principal or a party to the capital murder); Jones v. State, 458 S.W.3d

625, 631–32 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (holding that the State

presented sufficient evidence, which included DNA evidence, for a reasonable

factfinder to conclude beyond a reasonable doubt that because appellant was one of

the store’s robbers, he was involved in the store owner’s murder). We therefore hold

the evidence sufficient to support Mallory’s conviction for capital murder, and we

overrule his first point.10

IV. Motion to Suppress

In his second point, Mallory argues that the trial court abused its discretion by

admitting evidence found on his cell phone. Although Mallory’s second point does

not mention his motion to suppress, we construe his argument—that the confiscation

of his cell phone without a warrant or his consent violated his rights under the Fourth

Amendment and Texas Code of Criminal Procedure article 38.23—as challenging the

trial court’s denial of his motion to suppress.

To the extent that Mallory’s first point urges this court to also conduct a
10

review of the factual sufficiency of the evidence, we decline to do so. This court has
not conducted a factual sufficiency review since the court of criminal appeals
announced in Brooks v. State that the Jackson standard is the “only standard that a
reviewing court should apply in determining whether the evidence is sufficient to
support each element of a criminal offense that the State is required to prove beyond
a reasonable doubt.” 323 S.W.3d 893, 912 (Tex. Crim. App. 2010).

21
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). We give almost

total deference to a trial court’s rulings on questions of historical fact and application-

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

we review de novo application-of-law-to-fact questions that do not turn on credibility

and demeanor. Amador, 221 S.W.3d at 673; Estrada v. State, 154 S.W.3d 604, 607 (Tex.

Crim. App. 2005); Johnson v. State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

When, as here, 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 v. State, 214 S.W.3d 17, 25 (Tex. Crim. App.

2007). 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. State v. Kelly,

204 S.W.3d 808, 819 (Tex. Crim. App. 2006).

B. Applicable Law

The Fourth Amendment protects against unreasonable searches and seizures

by government officials. U.S. Const. amend. IV; Wiede, 214 S.W.3d at 24. To

22
suppress evidence because of an alleged Fourth Amendment violation, the defendant

bears the initial burden of producing evidence that rebuts the presumption of proper

police conduct. Amador, 221 S.W.3d at 672; see Young v. State, 283 S.W.3d 854, 872

(Tex. Crim. App. 2009). A defendant satisfies this burden by establishing that a

search or seizure occurred without a warrant. Amador, 221 S.W.3d at 672. Once the

defendant has made this showing, the burden of proof shifts to the State, which is

then required to establish that the search or seizure was nonetheless reasonable under

the totality of the circumstances. Id. at 672–73; Torres v. State, 182 S.W.3d 899, 902

(Tex. Crim. App. 2005); Ford v. State, 158 S.W.3d 488, 492 (Tex. Crim. App. 2005).

Under the Fourth Amendment, a warrantless arrest is unreasonable per se

unless it fits into one of a “few specifically established and well delineated

exceptions.” Minnesota v. Dickerson, 508 U.S. 366, 372, 113 S. Ct. 2130, 2135 (1993);

Torres, 182 S.W.3d at 901. A police officer may arrest an individual without a warrant

only if probable cause exists with respect to the individual in question and the arrest

falls within one of the exceptions set out in the code of criminal procedure. Torres,

182 S.W.3d at 901; see Tex. Code Crim. Proc. Ann. arts. 14.01–.04.

Probable cause for a warrantless arrest requires that the officer have a

reasonable belief that, based on facts and circumstances within the officer’s personal

knowledge, or of which the officer has reasonably trustworthy information, an offense

has been committed. Torres, 182 S.W.3d at 901–02. Probable cause must be based on

specific, articulable facts rather than the officer’s mere opinion. Id. at 902. We use

23
the “totality of the circumstances” test to determine whether probable cause existed

for a warrantless arrest. Id.

If probable cause existed for a warrantless arrest, “the police may legitimately

‘seize’ the property [such as a cell phone]” incident to that arrest. State v. Granville, 423

S.W.3d 399, 412 (Tex. Crim. App. 2014). A citizen, however, does not lose his

reasonable expectation of privacy in the contents of his cell phone merely because

that cell phone is being stored in a jail property room. Id. at 417. Police therefore

generally may not, without a warrant, search digital information on a cell phone seized

from an individual who has been arrested. Riley v. California, 134 S. Ct. 2473, 2493–94

(2014). If a warrant is obtained, neither the Fourth Amendment nor the Texas

exclusionary rule in article 38.23(a) of the Texas Code of Criminal Procedure requires

suppression of the information found on a cell phone because it was not obtained as a

result of some illegality. See Black v. State, 358 S.W.3d 823, 828 (Tex. App.—Fort

Worth 2012, pet. ref’d). See generally Tex. Code Crim. Proc. Ann. art. 38.23; State v.

Jackson, 464 S.W.3d 724, 731 (Tex. Crim. App. 2015).

C. Relevant Facts

After Mallory was booked into jail pursuant to his arrest for not having his

driver’s license in his possession, his cell phone, which was on his person, was seized

and tagged as evidence. Police thereafter obtained a search warrant to analyze the

contents of Mallory’s cell phone.

24
 Prior to the trial, Mallory filed a motion to suppress various items that were

seized pursuant to ten warrants. With regard to search warrant #30199, Mallory

argued in his motion to suppress that the supporting affidavit did not contain

sufficient probable cause for the search warrant’s issuance and that the object of the

search—Mallory’s cell phone—was seized without a warrant or consent in violation

of article I, sections 9 and 19 of the Texas constitution; Texas Code of Criminal

Procedure article 38.23; and the Fourth and Fourteenth Amendments to the United

States Constitution. Mallory argued that the evidence obtained from the search of his

cell phone should be suppressed under the fruit-of-the-poisonous-tree doctrine.

Before voir dire commenced, the trial court denied Mallory’s motion to suppress with

regard to the search of Mallory’s cell phone.

D. Analysis

The record reflects that during the investigative detention,11 Detective Pate

discovered that Mallory did not have his driver’s license with him, which when

combined with Mallory’s operation of the Infiniti on a public street, constituted a

traffic offense. See Tex. Transp. Code Ann. §§ 521.021, 521.025(a), (c). An arrest for

a minor traffic offense is not an unreasonable seizure under the Fourth Amendment.

See Atwater v. City of Lago Vista, 532 U.S. 318, 354, 121 S. Ct. 1536, 1557 (2001); State v.

Gray, 158 S.W.3d 465, 469 (Tex. Crim. App. 2005). The fact that the officer may have

Mallory does not challenge the investigative detention that occurred in the
11

mall parking lot other than to call it pretextual, arguing that Detective Pate’s reason
for speaking with him—that he was investigating car burglaries at the mall—was a lie.

25
had another subjective motive for seizing Mallory would not have made an objectively

reasonable seizure unlawful under the constitutions of the United States or of this

state. See Gray, 158 S.W.3d at 469–70. We conclude that Mallory was lawfully

arrested.

Mallory was then transported to the jail. Once at the jail, Mallory’s cell phone

was removed from his person during the book-in process. Because Mallory was

lawfully arrested and placed in jail, the administrative removal of his cell phone upon

book-in was not an unlawful seizure.12 See Illinois v. Lafayette, 462 U.S. 640, 648, 103 S.

Ct. 2605, 2611 (1983) (“[W]e hold that it is not ‘unreasonable’ for police, as part of

the routine procedure incident to incarcerating an arrested person, to search any

container or article in his possession, in accordance with established inventory

procedures.”); Stephens v. State, No. 05-16-01226-CR, 2018 WL 1443678, at *3 (Tex.

App.—Dallas Mar. 23, 2018, pet. ref’d) (mem. op., not designated for publication)

(holding that administrative removal of appellant’s cell phone upon book-in was not

an unlawful seizure).

Mallory’s oral argument on his second point varied from the point he briefed
12

on appeal. During oral argument, Mallory contended that the retention of his cell
phone was illegal. Because Mallory did not brief his retention argument, it is forfeited.
See Tex. R. App. P. 39.2 (“Oral argument should emphasize and clarify the written
arguments in the briefs.”) (emphasis added); Moore v. State, 165 S.W.3d 118, 121 n.1 (Tex.
App.—Fort Worth 2005, no pet.) (“An appellant may not raise new points during oral
argument; therefore, we will not address these previously unmentioned offenses
because they were not included in the written argument of Appellant’s brief.”).

26
 The record demonstrates that after police had seized Mallory’s cell phone,

Officer #3014 prepared an affidavit seeking permission to conduct a forensic analysis

on the cell phone.13 Based on the affidavit, which set forth substantial facts

establishing probable cause, the judge signed the search warrant. The search warrant

was obtained before any analysis was performed on the cell phone.

Because no search of Mallory’s cell phone occurred until after the officers had

obtained a search warrant for the cell phone, we hold that the trial court did not err by

denying Mallory’s motion to suppress the contents of his cell phone. See Black, 358

S.W.3d at 828. We further hold that Mallory’s constitutional rights were not violated

by the forensic analysis of his cell phone’s contents pursuant to a valid search warrant

and that no violation of our exclusionary statute, article 38.23(a) of the Texas Code of

Criminal Procedure, occurred. Accordingly, we overrule Mallory’s second point.

V. Admission of Testimony, Photographs, and Diagrams

In his four remaining points, Mallory challenges the trial court’s rulings

admitting various testimony and pieces of evidence.

A. Standard of Review

We review a trial court’s evidentiary rulings under an abuse-of-discretion

standard. See Jenkins, 493 S.W.3d at 607. A trial judge’s decision is an abuse of

discretion only when it falls outside the zone of reasonable disagreement. Winegarner

13
Because Mallory does not challenge the sufficiency of the affidavit, we do not
analyze it.

27
v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). An evidentiary ruling will be

upheld if it is correct on any theory of law applicable to the case. Gonzalez v. State, 195

S.W.3d 114, 126 (Tex. Crim. App. 2006).

B. Applicable Law

Generally, to preserve error for review, a party’s objection “must be specific

enough so as to ‘let the trial judge know what he wants, why he thinks himself entitled

to it, and do so clearly enough for the judge to understand him at a time when the trial

court is in a proper position to do something about it.’” Resendez v. State, 306 S.W.3d

308, 312–13 (Tex. Crim. App. 2009) (quoting Lankston v. State, 827 S.W.2d 907, 909

(Tex. Crim. App. 1992)). A general objection that evidence should not be admitted

under rule 403 is not sufficient to preserve error because it fails to identify for the trial

court which of the five distinct grounds for excluding evidence listed in the rule is

being argued as a basis for exclusion.14 Checo v. State, 402 S.W.3d 440, 451 (Tex.

App.—Houston [14th Dist.] 2013, pet. ref’d); Williams v. State, 930 S.W.2d 898, 901

(Tex. App.––Houston [1st Dist.] 1996, pet. ref’d).

Texas Rule of Evidence 403 provides:
14

The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following:
unfair prejudice, confusing the issues, misleading the jury, undue delay,
or needlessly presenting cumulative evidence.

Tex. R. Evid. 403.

28
 Moreover, the preservation rule requires a party to object each time

objectionable evidence is offered unless the party has obtained a running objection or

raises his objections at a hearing outside the presence of the jury. Geuder v. State, 115

S.W.3d 11, 13 (Tex. Crim. App. 2003); see also Leday v. State, 983 S.W.2d 713, 718 (Tex.

Crim. App. 1998) (explaining that Texas applies the “futility rule,” meaning that

despite a trial court’s ruling that evidence is admissible, a party must keep making

futile objections on pain of waiver). Unobjected-to testimony about objected-to

evidence results in forfeiture of the objection. See Clay v. State, 361 S.W.3d 762, 767

(Tex. App.—Fort Worth 2012, no pet.) (“[B]ecause Wallace provided testimony about

the Louisiana records without objection before and after appellant’s objection to the

admission of the records and because appellant failed to obtain a running objection,

we conclude that he forfeited his objection to the records’ admission.” (footnote

omitted)); see also Jones v. State, No. 06-15-00119-CR, 2016 WL 3197397, at *5 (Tex.

App.—Texarkana June 9, 2016, no pet.) (mem. op., not designated for publication)

(“Smuts testified about the results of the DNA laboratory report. Therefore, we find

that Jones waived his . . . complaints regarding the admission of the DNA report.”).

Furthermore, preservation of error is a systemic requirement that this court should

review on its own motion. Darcy v. State, 488 S.W.3d 325, 327–28 (Tex. Crim. App.

2016).

29
C. Analysis

1. Photographs of and Testimony about Grave-Sized Hole and Items
Found in Mallory’s Cadillac’s Trunk

In his third and sixth points, Mallory argues that the trial court abused its

discretion by admitting—over his rule 401 and rule 403 objections—State’s Exhibits

393–399 and 400–402, which are photographs depicting the grave-sized hole

discovered in Lueders, Texas, and items found in the trunk of a Cadillac owned by

Mallory. Mallory further argues that the trial court abused its discretion by admitting

Detective Cedillo’s testimony about those photographs.

The record does not reflect that Mallory asserted a rule 401 or a rule 403

objection to Detective Cedillo’s testimony about the content of the photographs.

Mallory objected only to the admission of the photographs based on those grounds.

Mallory therefore forfeited his complaints regarding the admission of Detective

Cedillo’s testimony about the photographs of the grave-sized hole and the items

found in the Cadillac’s trunk. See Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App.

2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009); Pena v. State, 285

S.W.3d 459, 464 (Tex. Crim. App. 2009). Moreover, because Mallory did not object

to Detective Cedillo’s testimony describing what the photos depicted and did not

request a running objection to the admission of the photographs based on his rule 401

and 403 objections, we hold that any error in the admission of the photographs

showing the grave-sized hole and the items found in the Cadillac’s trunk was forfeited.

See Leday, 983 S.W.2d at 718; Clay, 361 S.W.3d at 767; Warren v. State, No. 02-17-
30
00221-CR, 2018 WL 3764069, at *6 (Tex. App.—Fort Worth Aug. 9, 2018, pet. ref’d)

(mem. op., not designated for publication); Walker v. State, No. 02-16-00418-CR, 2018

WL 1096060, at *4 (Tex. App.—Fort Worth Mar. 1, 2018, no pet.) (mem. op., not

designated for publication).15 Accordingly, we overrule Mallory’s third and sixth

points.

2. Photographs of Victim in Her Apartment

In his fourth point, Mallory contends that the trial court abused its discretion

by admitting—over his rule 403 objections—State’s Exhibits 27–30, which are

photographs depicting Harris as she was found in her apartment on November 28.

When the State offered the challenged exhibits, Mallory made a general rule

403 objection. Later, the State asked Crime Scene Officer Pilar Ramirez the

following:

Q. Okay. State’s Exhibit 27, what is that?

A. That’s the victim laying on the floor next to her bed on the -- on the
floor near the door. It’s a small bedroom.

15
Mallory’s arguments in his sixth point—that “[t]he proper predicate was not
laid for the introduction of the State’s evidence” and that “[t]he court did not conduct
a balancing test as is required by [r]ule 403”—are not preserved for our review
because he did not object on these grounds in the trial court. See Clark, 365 S.W.3d at
339; Lovill, 319 S.W.3d at 691–92; Pena, 285 S.W.3d at 464; Jennings v. State, No. 02-16-
00300-CR, 2017 WL 3633992, at *7 (Tex. App.—Fort Worth Aug. 24, 2017, no pet.)
(mem. op., not designated for publication) (holding that appellant forfeited predicate
complaints and balancing-test complaints by failing to object on those grounds at
trial). To the extent that Mallory repeats these arguments in his fourth and fifth
points, they are likewise not preserved for our review.

31
 Q. And was that the condition that she was in when you first walked
into that room?

A. Yes.

Q. And State’s Exhibit 28, a closer-up view of her, what are we taking a
picture of here?

A. Both of her hands are bound with duct tape.

Q. And State’s Exhibit 29?

A. Both of her ankles and feet were also bound with duct tape.

Q. Now looking at State’s Exhibit 30, is this just a better view of the
bed and the condition that it was in?

A. Yes.

As the above excerpt shows, Mallory did not object to Officer Ramirez’s

testimony describing what was depicted in the photographs, nor did Mallory seek a

running objection. We therefore hold that any error in the admission of State’s

Exhibits 27–30 was forfeited. See Leday, 983 S.W.2d at 718; Clay, 361 S.W.3d at 767;

Warren, 2018 WL 3764069, at *6; Walker, 2018 WL 1096060, at *4. We overrule

Mallory’s fourth point.

3. Autopsy Photographs and Diagrams

In his fifth point, Mallory argues that the trial court abused its discretion by

admitting—over his rule 403 objections—State’s Exhibits 224, 226, 228, 230, 232,

236, 238, 242, 247, 249, 256, 258, 261, 264, 266–269, 272–280, 466, and 467, which

are photographs and diagrams from the autopsy. At trial, when the State offered

these 29 exhibits, Mallory stated, “Judge we would object to all of these under 403.”
32
Mallory’s general rule 403 objection was not specific enough to let the trial judge

know why Mallory believed the objected-to State’s exhibits were not admissible based

on rule 403. See Resendez, 306 S.W.3d at 312–13; Checo, 402 S.W.3d at 451. Because

Mallory’s rule 403 objection was not sufficiently specific, Mallory forfeited any error

in the admission of these challenged exhibits. See Tex. R. App. P. 33.1(a)(1)(A); Checo,

402 S.W.3d at 451; Williams, 930 S.W.2d at 901; Page v. State, No. 02-17-00019-CR,

2017 WL 4819404, at *3 (Tex. App.—Fort Worth Oct. 26, 2017, pet. ref’d) (mem.

op., not designated for publication) (holding appellant’s objections—“I make a 403

objection to 69” and “[s]eventy-four, objection under 403”—not sufficiently specific

to preserve error for review). We overrule Mallory’s fifth point.

VI. Conclusion

Having overruled Mallory’s six points, we affirm the trial court’s judgment.

/s/ Bonnie Sudderth
Bonnie Sudderth
Chief Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 14, 2019

33