Gavin Heath Gilbert v. State

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana

No. 06-18-00152-CR

GAVIN HEATH GILBERT, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 8th District Court
Hopkins County, Texas
Trial Court No. 1826694

Before Morriss, C.J., Burgess and Stevens, JJ.
Opinion by Justice Stevens
 OPINION
A Hopkins County jury rejected Gavin Heath Gilbert’s claim that he acted in self-defense

and convicted him of the murder 1 of Tyrone Phelps. 2 Based on the jury’s verdict, Gilbert was

assessed a punishment of fifty-five years’ imprisonment. On appeal, Gilbert contends that there

was legally insufficient evidence (1) to support his conviction for murder and (2) to support the

jury’s rejection of his claim of self-defense. Gilbert also contends that the trial court erred in

(1) admitting evidence that improperly bolstered the testimony of one of the State’s witnesses,

(2) admitting a photograph of the victim in the hospital, (3) admitting a video recording of the

victim’s family during the punishment phase of the trial, (4) submitting a jury instruction on retreat,

(5) failing to submit an instruction regarding the effect of self-defense on the lesser-included

offense of manslaughter, and (6) failing to submit different manner and means of murder as

separate charges. Since we find there is legally sufficient evidence to support Gilbert’s conviction

and the jury’s rejection of his self-defense claim and we find no trial court error on his jury charge

and preserved evidentiary complaints, we affirm the trial court’s judgment.

I. The Evidence at Trial

A. The Testimony of Phelps’ Friends

On the evening of December 17, 2017, Phelps and four of his friends, Larry, John, Jack,

and Jim, took Larry’s truck to purchase fourteen grams of marihuana from Gilbert. Larry, John,

Jack, and Jim gave generally consistent testimony about the events leading up to, and following,

1
See TEX. PENAL CODE ANN. § 19.02(b) (West 2011).
2
We refer to all persons who were minors when the offense was committed by pseudonyms. See TEX. R. APP. P.
9.10.

2
the incident. They testified that, two days before the incident, Gilbert sold Larry and John an

amount of marihuana that he represented to be fourteen grams, which turned out to be only nine

grams. Consequently, Phelps and his friends decided to bring digital scales to the December 17

transaction to weigh the marihuana. They also decided that, if Gilbert shorted them again, they

would drive off with the marihuana without paying for it.

Larry and his friends pulled up and parked on the side of the road in front of Gilbert’s house

and waited as Gilbert walked down from his house. 3 Gilbert came to the driver’s window and

gave the marihuana to Larry, who weighed it on the scales. Instead of the fourteen grams agreed

upon, the marihuana only weighed around nine grams. After informing Gilbert of the discrepancy,

and a short verbal exchange, Larry hit the gas pedal and peeled out toward the road. Larry and his

friends testified that no one had threatened Gilbert, yelled at him, pulled a weapon on him, or used

the truck as a weapon during the incident.

At trial, the four young men all agreed that the truck sped up quickly, but several had

differing memories regarding the initial movement of the truck. John thought the tires made a

squealing sound. Larry testified that the truck spun out a bit and acknowledged that its back end

slid to the left and could have hit Gilbert if he had not moved back. Jack acknowledged that the

truck spun out, but did not think that it moved toward Gilbert.

The young men also testified that the truck then sped across the road. They heard Gilbert

fire several gunshots, one after another. Then several bullets came through the back of the truck.

Phelps screamed that he had been shot. They called 9-1-1 and were told to meet the ambulance at

3
Aerial photographs show that Gilbert lived off a country road and that his house was set back several hundred feet
from the road.
3
a fire station. On the way to the fire station, one of them threw the marihuana to the side of the

road. When they got to the fire station, the young men quickly agreed to tell the police that they

had been “free-styling” in the country and had passed close to someone, who then started shooting

at them.

They first told this fabricated story to law enforcement because they were afraid and did

not want to disclose the marihuana. But Larry told Lewis Tatum, the Hopkins County Sheriff,

what really happened when he rode with Tatum to show him where the incident happened. Later

on, the other young men also told law enforcement what really happened when confronted with

the physical evidence.

The young men also testified that Larry had a deer rifle and a shotgun in his truck that

night. The rifle was between the front seats with the barrel to the floor, and the shotgun was behind

the back seat. The rifle may have been visible to Gilbert.

B. Mason Gilbert’s Testimony

Mason Gilbert, Gilbert’s cousin, testified that, on the evening of December 17, he was

visiting Gilbert’s brother at their grandmother’s house. Gilbert walked outside without saying

anything. About thirty minutes later, Mason went to look for Gilbert when he did not answer his

cell phone. When Mason went outside, Gilbert called him and explained that he had been robbed.

Later, Gilbert revealed that, when he walked outside, he was going to sell marihuana to Larry and

carried a gun in his pocket. Gilbert explained that, when he got to Larry’s truck, Larry was driving,

and Jim was in the front seat. He also said that two or three black people were in the back seat.

Mason told law enforcement that Gilbert told him the following:

4
 [Gilbert] kept his hand on his gun the whole time because . . .

....

. . . . [t]hey rob, you know. So he handed it to him. They put it on the scale, and
then somebody in the back seat said, f[]k it, let’s just go, let’s go. And then the
tires squealed. . . . [A]s soon as the tires squealed and he felt the truck going off, he
came out. And probably about five -- probably about from here to there, he said he
shot, like, four or five times and said he didn’t know if he hit anyone.

Mason also affirmed that Gilbert never told him that anybody pulled a weapon on him, threatened

him, hit him with a vehicle, or tried to run over him.

Around midnight, they learned through social media that Gilbert had killed someone. They

then took Gilbert’s Glock 9mm pistol into the woods and buried it, and Gilbert threw the live

bullets into the trash pile. They also went two or three times to the site of the shooting to try to

find the spent bullet casings, but could not find them. They then hid the Glock pistol’s box in a

drawer in a shed. Mason testified that Gilbert was very upset about the incident and that he stayed

up with him until about 1:00 a.m. because he was worried about him. When law enforcement

came the following day with a search warrant, Mason led them to the buried Glock pistol and its

box. The officers also told him that they had located the spent casings.

After being confronted with a recording of a jail telephone call, Mason admitted that

Gilbert had asked him not to testify. He also acknowledged that, when the SWAT team came to

arrest Gilbert, Mason’s father told Mason not to talk with the officers.

C. Law Enforcement Testimony

Sheriff Tatum testified that the young men had told law enforcement that they were driving

down the road and drove past a person who shot through the back of the truck, striking one of

them. He did not believe that account. Tatum testified that he struck up a conversation with Larry

5
and asked him if he could show Tatum where the shooting had taken place. As they talked, Larry

told him a different story. Larry also showed him where the shooting took place, and Tatum

directed his investigators to the location. Tatum also testified about the details of Larry’s statement

and that the statement was consistent with the physical evidence found in the truck and at the scene.

Kenneth Dean, the jail administrator for the Hopkins County Sheriff’s Department

(HCSD), testified that Gilbert had no injuries when he was booked into jail the day after the

shooting. Dean also identified the persons speaking on five recordings of telephone calls between

Gilbert, his father, his mother, and Mason. On the recording from December 23, Gilbert said that

one of his friends had told him that the charges against him would be dropped. The recording from

January 20, 2018, showed that Gilbert learned for the first time that law enforcement had executed

a search warrant on the property. Gilbert asked his mother repeatedly where they had looked and

what had been found in the search. When his mother told him that law enforcement had talked to

Mason, he quizzed her about where they talked to Mason and what he told them. When his father

came to the phone and informed him that law enforcement found a 9mm pistol in the safe, Gilbert

responded that he was not worried. On the recording from February 27, 2018, Gilbert urged Mason

not to testify at his trial, no matter what the State offered him.

John Vance, a Texas Ranger with the Texas Department of Public Safety (DPS), was the

lead investigator. He testified that four spent shell casings were found on the scene and that their

locations showed that the shooter fired twice, retreated, and fired two more times. 4 The locations

of the spent shell casings revealed that the bullets were fired when the truck was crossing the road

4
Photographs taken during the investigation show the locations of the spent shell casings in relation to the acceleration
marks left in the grass and on the road by the truck’s rear tires as it crossed the road.
6
and travelling toward a mailbox on the other side of the road. Vance gave extensive testimony

about his inspection of Larry’s truck. The inspection showed that four bullets penetrated the truck

and showed the trajectory of the bullets. One of the bullets was recovered from Phelps’ left leg

and another from his chest. Vance also testified that the physical evidence of the bullet trajectories

showed that the shooter was directly behind the truck. Vance also explained that, after Mason led

him to the back of the property near a trash pile, they recovered the Glock 9mm pistol from beneath

an old recliner chair.

On cross-examination, Vance testified that he had interviewed Larry, John, Jack, and Jim

twice. After his initial interviews of the young men, he learned from Tatum that there was new

information. After interviewing the young men a second time, he characterized their first

statements as lies.

Shea Shaw, a sergeant with the HCSD, was also involved in the investigation. On cross-

examination, Shaw testified that, if someone was standing by a truck in a muddy location and the

truck accelerated rapidly, it could place the person in danger. He also testified that it was possible

that the truck could skid out and knock the person down.

Dennis Findley, a criminal investigator for the HCSD, testified that, during the execution

of the search warrant on December 18, he recovered a Ruger 9mm pistol and 9mm ammunition

from a gun safe in the main house on the property. He also testified that a Glock 9mm pistol was

found on the property.

Corley Weatherford, chief investigator for the HCSD, took a statement from Mason. He

testified that Mason told him that he and Gilbert knew that law enforcement would come, so they

hid the gun and removed the live bullets from the gun, which they threw in the trash pile. Mason

7
also said that they looked for the spent casings at the scene of the shooting so they could remove

them. In addition, Mason told him that the young men took Gilbert’s last bag of marihuana and

that that was probably why Gilbert was so angry.

Nathan Tunnell is a firearms and tool marks examiner for the DPS Crime Laboratory in

Tyler. He testified that the four recovered shell casings and the bullets recovered from Phelps’

thigh and chest were all fired from the Glock 9mm pistol recovered from the Gilbert property.

Dr. Chester Gwin is a medical examiner for the Dallas County Medical Examiner’s Office.

He testified that Phelps had two gunshot wounds to his body. One bullet entered his left upper

back, hit the aorta and the right side of his heart, and lodged in soft tissue, where it was recovered.

Gwin testified that Phelps would only have had seconds to minutes to live from such a wound.

The second bullet entered the front of Phelps’ left thigh, where it was recovered. 5

D. Gilbert’s Testimony

Testifying in his own defense, Gilbert said that he had turned seventeen years old about six

weeks before the incident. He had lived with his grandmother, Kathy Temples, since he was four

or five years old. Two days before the incident, he sold Larry fourteen grams of marihuana for

$90.00. Two hours later, Larry texted him and said that he thought it was short. In response,

Gilbert offered to sell him some better stuff.

On December 17, Larry texted and asked if he had any marihuana. Gilbert offered to sell

him a half of an ounce, 6 but no price was discussed. After Gilbert refused to come to town, Larry

said he would come to his house. When Larry arrived, he texted Gilbert, who walked down to

5
Gwin testified that this bullet could have come from behind Phelps if his leg had been propped up on the car seat.
6
One-half ounce is the equivalent of fourteen grams.
8
meet them. Gilbert said he brought his gun with him because “the whole thing just seemed a little

weird,” and no price had been requested. When he got to the truck, it was running, but no lights

were on. Gilbert went to the driver’s window, and Larry asked if he could weigh the marihuana.

He gave the marihuana to Larry and leaned against the door. Gilbert saw Larry and a front seat

passenger, but he could not see how many people were in the back seat.

Larry said the marihuana only weighed “nine something.” Gilbert asked if Larry would

give him $100.00, to which Larry responded, “[Y]es.” Then someone in the truck said, “[J]ust

take it.” Larry punched the accelerator and took off. When the truck took off, it pushed Gilbert

back a couple of steps. Gilbert said he was scared and just reacted and fired without aiming at

anything. He claimed he did not know if he hit anything or how many times he fired his pistol.

Gilbert testified that he heard the tires squeal, that it startled him a little, and that he felt he was in

danger. He said he knew that Larry had guns in his truck, but he never saw one and nobody pointed

one at him.

Once the truck got down the road, Gilbert ran to his house and met up with Mason. Gilbert

told Mason that he had been robbed. They talked for a short while, then Gilbert went to his room.

About two hours later, he saw posts on social media that someone had shot at Larry’s truck and

that there was a death. Accordingly, Gilbert knew it was about the incident, so he threw the gun

in the woods and told Mason he needed to talk to him. They buried the gun by the trash pile and

threw out the remaining ammunition. A few hours later, law enforcement arrived and arrested

Gilbert.

Gilbert said that he did not intend to shoot anybody and that he was not aiming at anything.

Rather, he claimed he was just shooting out of reaction because he was scared. He did not know

9
Phelps, but had seen him around. Until he saw the Facebook post, Gilbert did not realize he had

hit anything. He said he was backing up as he was firing and only fired four shots. He was sorry

for what happened.

On cross-examination, Gilbert admitted that he had lied to Vance when he denied that he

met up with Larry and sold him marihuana. He admitted that the bag of marihuana taken by Larry

was his last bag, but denied that it upset him. He acknowledged that he did not find out that law

enforcement had searched his house until one month after he was arrested. Gilbert also admitted

that, when he told his mother and father that there were no new charges, he believed that his gun

had not been found and thought his plan had worked. He further admitted that he got upset when

he found out Mason had talked with law enforcement. Gilbert then admitted that, when his father

told him that only the Ruger 9mm pistol out of the safe had been found, he was not worried because

he thought law enforcement had not found the gun he used to kill Phelps.

Gilbert acknowledged that he later discovered Mason had cooperated with law enforcement

from his lawyer and that he was furious with Mason at the time. About a month later, he spoke

with Mason and told him not to get on the stand no matter what they offered him. Gilbert admitted

that, at the time, he thought he would not get convicted.

Gilbert testified that he had the pistol in his possession for about thirty days. He admitted

getting it out of the drawer that evening and loading it. He identified the Glock 9mm pistol as the

gun he used to kill Phelps. While admitting that he hit the truck with all the bullets he fired, he

maintained that it was an accident. He acknowledged that, looking back at it now, he did not have

good cause to fire at the truck. He admitted that he fired the bullets and that he caused the death

10
of Phelps by shooting him with a firearm. He also admitted that he knowingly discharged the gun

in the direction of the truck.

Gilbert also called his grandmother, Kathy Temples, as a witness. Temples testified that

Gilbert had lived with her since he was three years old. She did not think he had a violent nature.

II. Legally Sufficient Evidence Supports Gilbert’s Conviction

In his first and second issues, Gilbert complains that there is legally insufficient evidence

to support (1) the jury’s verdict that he committed murder and (2) the jury’s implicit rejection of

his claim of self-defense. We disagree.

A. Standard of Review

In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield

v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). Our rigorous review

focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917–18 (Cochran, J.,

concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving

deference to the responsibility of the jury “to fairly resolve conflicts in testimony, to weigh the

evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In drawing reasonable inferences, the jury “may

use common sense and apply common knowledge, observation, and experience gained in the

ordinary affairs of life.” Duren v. State, 87 S.W.3d 719, 724 (Tex. App.—Texarkana 2002, pet.

11
struck) (citing Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999) (Meyers, J.,

concurring)). The jury is also the sole judge of the credibility of the witnesses and the weight to

be given their testimony and may “believe all of a witness[’] testimony, portions of it, or none of

it.” Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give “almost complete

deference to a jury’s decision when that decision is based on an evaluation of credibility.” Lancon

v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

In our review, we consider “events occurring before, during and after the commission of

the offense and may rely on actions of the defendant which show an understanding and common

design to do the prohibited act.” Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d

107, 111 (Tex. Crim. App. 1985)). It is not required that each fact “point directly and

independently to the guilt of the appellant, as long as the cumulative force of all the incriminating

circumstances is sufficient to support the conviction.” Id. Circumstantial evidence and direct

evidence are equally probative in establishing the guilt of a defendant, and guilt can be established

by circumstantial evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015);

Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).

And we consider all the evidence admitted at trial, even improperly admitted evidence. Moff v.

State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004).

B. Sufficient Evidence Supports the Murder Conviction

Under the Texas Penal Code, a person commits first-degree murder if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act
clearly dangerous to human life that causes the death of an individual; or

12
 (3) commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the commission or
attempt, . . . he commits or attempts to commit an act clearly dangerous to
human life that causes the death of an individual.

TEX. PENAL CODE ANN. § 19.02(b).

These three methods of committing murder are not separate offenses, but alternative

methods of committing the same offense. Smith v. State, 436 S.W.3d 353, 378 (Tex. App.—

Houston [14th Dist] 2014, pet. ref’d); Lozano v. State, 359 S.W.3d 790, 821 (Tex. App.—Fort

Worth 2012, pet. ref’d); see Aguirre v. State, 732 S.W.2d 320, 325–26 (Tex. Crim. App. [Panel

Op.] 1982) (op. on reh’g) (holding that an indictment alleging theories of both intentional and

knowing murder and felony murder did not allege different offenses, but only different ways of

committing the same offense); accord Barfield v. State, 202 S.W.3d 912, 916 (Tex. App.—

Texarkana 2006, pet. ref’d). The State’s indictment alleged four alternate theories of how Gilbert

murdered Phelps corresponding to the statutory manner and means of committing first-degree

murder. 7 The trial court charged the jury in the disjunctive, tracking the indictment, and the jury

7
The indictment alleged that, on or about December 17, 2017, Gilbert:

Paragraph 1: Did then and there intentionally or knowingly cause the death of an
individual, namely, [Phelps], by shooting him with a firearm; or

Paragraph 2: Did then and there, with intent to cause serious bodily injury to an
individual, namely, [Phelps], commit an act clearly dangerous to human life that caused the death
of [Phelps], by shooting him with a firearm; or

Paragraph 3: Did then and there commit or attempt to commit a felony, to wit: Deadly
Conduct, by knowingly discharging a firearm at or in the direction of one or more individuals, and
in the course of or in furtherance of the commission or attempt to commit Deadly Conduct, the
defendant committed or attempted to commit an act clearly dangerous to human life that caused the
death of [Phelps], by discharging a firearm at or in the direction of one or more individual; or

Paragraph 4: Did then and there commit or attempt to commit a felony, to wit: Deadly
Conduct, by knowingly discharging a firearm at or in the direction of a vehicle, and the defendant
was reckless about whether the vehicle was occupied, and in the course of or in furtherance of the
commission or attempt to commit Deadly Conduct, the defendant committed or attempted to commit
13
returned a general verdict. 8 When a general verdict is returned and there is sufficient evidence to

support a finding under any of the alleged theories submitted, we will uphold the verdict. Fuller

v. State, 827 S.W.2d 919, 931 (Tex. Crim. App. 1992) (en banc); Aguirre, 732 S.W.2d at 326. We

therefore need only determine whether there is sufficient evidence to support a guilty finding under

one of the theories submitted to the jury.

Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

The “hypothetically correct” jury charge is “one that accurately sets out the law, is authorized by

the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict

the State’s theories of liability, and adequately describes the particular offense for which the

defendant was tried.” Id.

To obtain a guilty verdict under Section 19.02(b)(2), the State had to prove beyond a

reasonable doubt that Gilbert (1) intended (2) to cause serious bodily injury and (3)(a) committed

an act clearly dangerous to human life (b) that caused the death of Phelps. See TEX. PENAL CODE

ANN. § 19.02(b)(2). Gilbert only challenges the sufficiency of the evidence showing he committed

an act clearly dangerous to human life that caused the death of [Phelps], by discharging a firearm at
or in the direction of an occupied vehicle.
8
As explained in Kitchens v. State,

[A]lthough the indictment may allege the differing methods of committing the offense in the
conjunctive, it is proper for the jury to be charged in the disjunctive. It is appropriate where the
alternate theories of committing the same offense are submitted to the jury in the disjunctive for the
jury to return a general verdict if the evidence is sufficient to support a finding under any of the
theories submitted.

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (citations omitted).
14
an act clearly dangerous to human life. 9 This element requires a showing “that the act intended to

cause serious bodily injury be objectively clearly dangerous to human life.” Lugo-Lugo, 650

S.W.2d 72, 81 (Tex. Crim. App. 1983) (en banc).

The evidence here shows that Gilbert shot several times into a truck that he knew was

occupied by at least three people. As the Texas Court of Criminal Appeals has stated, “[F]iring a

gun in the direction of an individual is an act clearly dangerous to human life.” Forest v. State,

989 S.W.2d 365, 368 (Tex. Crim. App. 1999); see Warren v. State, No. 02-17-00221-CR, 2018

WL 3764069, at *4 (Tex. App.—Fort Worth Aug. 9, 2018, pet. ref’d) (mem. op., not designated

for publication) 10 (shooting two shots into vehicle in road rage incident sufficient evidence under

Section 19.02(b)(2)). Likewise, a rational jury could find that shooting several times into the cab

of a truck that the defendant knows is occupied by multiple people is clearly dangerous to human

life.

Even so, Gilbert argues that he cannot be found guilty under Section 19.02(b)(2) when he

is acting out of self-defense. Yet, none of the cases cited by Gilbert support this proposition. And

9
Although Gilbert does not challenge the sufficiency of the evidence supporting the jury’s findings that he intended
to cause serious bodily injury and that his actions caused the death of Phelps, we find that sufficient evidence supports
those findings. Although Gilbert maintained that he fired out of a reaction and without aiming, the physical evidence
and Gilbert’s testimony showed that he backed up and fired two shots, then backed up again and fired two more shots
into a truck that he knew was occupied by three or more people. The evidence also showed that each of the bullets
Gilbert shot penetrated the truck and that at least three of the bullets penetrated the cab of the truck. By his own
admission, one of the shots he fired caused the death of Phelps. That admission was confirmed by the physical
evidence and the testimony of the medical examiner. Gilbert also testified that he purposefully took his loaded pistol
to the transaction, “just in case,” and that he attempted to hide the gun, its live ammunition, and the spent casings to
impede the investigation by law enforcement. This evidence is sufficient to support the jury’s findings that Gilbert
intended to cause serious bodily injury to at least one of the occupants of the truck and that his shooting into the
occupied truck caused the death of Phelps.
10
“Although unpublished cases have no precedential value, we may take guidance from them ‘as an aid in developing
reasoning that may be employed.’” Rhymes v. State, 536 S.W.3d 85, 99 n.9 (Tex. App.—Texarkana 2017, pet. ref’d)
(quoting Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d)).
15
by entering a verdict of guilty, the jury impliedly rejected his assertion that he was acting in self-

defense. See Braughton v. State, No. PD-0907-17, 2018 WL 6626621, at *12 (Tex. Crim. App.

Dec. 19, 2018) (“A jury verdict of guilty is an implicit finding rejecting the defendant’s self-

defense theory.”) (quoting Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991)).

After viewing all the evidence in the light most favorable to the jury’s verdict, we find that

legally sufficient evidence supports Gilbert’s conviction for murder.

C. Sufficient Evidence Supports the Rejection of Gilbert’s Self-Defense Theory

In his second issue, Gilbert challenges the legal sufficiency of the evidence supporting the

jury’s implicit finding rejecting his self-defense theory. Gilbert argues that ample evidence

showed that he reasonably believed that deadly force was necessary to protect himself from the

truck occupants’ use or attempted use of deadly force and their commission of aggravated robbery.

He also argues that the State failed to meet its burden of persuasion to disprove self-defense. Thus,

he argues, no rational jury would have found against his self-defense theory beyond a reasonable

doubt. Again, we disagree.

1. Standard of Review

In evaluating a claim of insufficient evidence in the context of a self-defense issue, we

apply the general sufficiency review principles set forth above, along with sufficiency review

principles specific to self-defense. Id. When there is a claim of self-defense or defense of a third

person to justify use of force or deadly force against another, “the defendant bears the burden to

produce evidence supporting the defense, while the State bears the burden of persuasion to

disprove the raised issues.” Id. (citing Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App.

2003); Saxton, 804 S.W.2d at 913–14). The defendant must produce “some evidence that would

16
support a rational finding in his favor on the defensive issue.” Id. (citing Krajcovic v. State, 393

S.W.3d 282, 286 (Tex. Crim. App. 2013)). The State need not produce evidence. Instead, its

burden of persuasion only requires “that the State prove its case beyond a reasonable doubt.” Id.

(quoting Zuliani, 97 S.W.3d at 594 (citing Saxton, 804 S.W.2d at 913)). For that reason,

[i]n resolving the sufficiency of the evidence issue, we look not to whether the State
presented evidence which refuted appellant’s self-defense testimony, but rather we
determine whether after viewing all the evidence in the light most favorable to the
prosecution, any rational trier of fact would have found the essential elements of
[the offense] beyond a reasonable doubt and also would have found against
appellant on the self-defense issue beyond a reasonable doubt.

Id. (quoting Saxton, 804 S.W.2d at 914). And as with the general sufficiency principles, the trier

of fact is the sole judge of the credibility of defensive evidence, and it is free to accept it or reject

it. Id. (citing Saxton, 804 S.W.2d at 914). As a result, “[d]efensive evidence which is merely

consistent with the physical evidence at the scene of the alleged offense will not render the State’s

evidence insufficient.” Id. (citing Saxton, 804 S.W.2d at 914).

2. The Law of Self-Defense

The use of deadly force is a defense to prosecution for murder if the use of deadly force is

justified. See TEX. PENAL CODE ANN. §§ 9.02, 9.31–.32 (West 2011); Braughton, 2018

WL 6626621, at *9. “[A] person is justified in using force against another when and to the degree

the actor reasonably believes the force is immediately necessary to protect the actor against the

other’s use or attempted use of unlawful force.” TEX. PENAL CODE ANN. § 9.31(a). And “[a]

person is justified in using deadly force against another . . . when and to the degree the actor

reasonably believes the deadly force is immediately necessary . . . to protect the actor against the

17
other’s use or attempted use of unlawful deadly force . . . .” 11 TEX. PENAL CODE ANN.

§ 9.32(a)(2)(A). “Reasonable belief” is defined as “a belief that would be held by an ordinary and

prudent man in the same circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(a)(42) (West

Supp. 2018).

In some cases, the actor’s belief that deadly force was immediately necessary is presumed

to be reasonable. One of those circumstances is when (1) the actor “knew or had reason to believe

that the person against whom the deadly force was used” was committing or attempting to commit

certain enumerated offenses, (2) the actor did not provoke the other person, and (3) the actor was

not engaged in criminal activity, other than a class C misdemeanor or a traffic violation. TEX.

PENAL CODE ANN. § 9.32(b)(1). Here, it is undisputed that Gilbert was attempting to deliver

marihuana, which is, at minimum, a class B misdemeanor. 12 Therefore, the presumption that

Gilbert’s belief was reasonable does not apply.

In addition, an actor is not required to retreat before using deadly force if he “has a right to

be present at the location where the deadly force is used, [he] has not provoked the person against

whom deadly force is used, and [he] is not engaged in criminal activity at the time deadly force is

used . . . .” TEX. PENAL CODE ANN. § 9.32(c).

11
A person may also use deadly force “when and to the degree the actor reasonably believes the deadly force is
immediately necessary . . . to prevent the other’s imminent commission of” certain enumerated offenses, including
“robbery or aggravated robbery.” TEX. PENAL CODE ANN. § 9.32(a)(2)(B). That said, the jury was not instructed
regarding this aspect of self-defense, and Gilbert does not complain that this omission was charge error.
12
See TEX. HEALTH & SAFETY CODE ANN. § 481.120(b)(1) (West 2017).
18
 3. Analysis

We have already determined that legally sufficient evidence supports the jury’s finding,

beyond a reasonable doubt, that Gilbert committed murder. So we must now “determine

whether[,] after viewing all the evidence in the light most favorable to the prosecution, any rational

trier of fact. . . . also would have found against [Gilbert] on the self-defense issue beyond a

reasonable doubt.” Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

Gilbert testified that it startled him when Larry took off rapidly in the truck, that it pushed

him back a few feet, and that he felt he was in danger. Other witnesses differed on whether the

truck’s back end may have veered a bit toward Gilbert, and several witnesses acknowledged that

it was possible that the truck’s action could have injured Gilbert. The physical evidence, however,

showed an arcing path out of the grass that headed away from anyone who may have been standing

at the driver’s window. It also showed that the truck continued in a direction away from where

Gilbert was first standing, with no indication that the truck ever turned in Gilbert’s direction. The

physical evidence and Gilbert’s testimony also showed that he stepped back a few feet before

shooting two shots, retreated again, and shot two more times, all while the truck was going in the

opposite direction. Gilbert did not testify that he thought his use of deadly force was necessary to

prevent Larry’s use or attempted use of deadly force against him. Rather, Gilbert stated that he

did not think the truck would return. On this evidence, a rational jury could reasonably find that

an ordinary and prudent person in the same circumstance would not believe that deadly force was

necessary to prevent the use of deadly force by Larry.

Gilbert also took steps to cover up his involvement in the shooting. First, he hid the gun

and the unused ammunition and attempted to hide the spent shells. In addition, when initially

19
interviewed by Vance, Gilbert denied having any involvement in the incident. A jury may consider

a defendant’s actions after the commission of the offense. See Clayton v. State, 235 S.W.3d 772,

780 (Tex. Crim. App. 2007). And during the time that he thought law enforcement had not

recovered the murder weapon, Gilbert confidently expressed that he was not worried and that he

believed the charges would be dropped. A rational jury considering Gilbert’s attempted cover up,

his confidence while he thought the cover up successful, and his denial of any involvement could

draw a strong inference that the shooting was intentional, and not the result of self-defense. See

id.

After considering all of the evidence in a light most favorable to the prosecution, we find

that a rational jury could reasonably find, beyond a reasonable doubt, against Gilbert’s claim of

self-defense. As a result, we find that legally sufficient evidence supports the jury’s rejection of

Gilbert’s self-defense issue. We overrule Gilbert’s second issue.

III. No Jury Charge Error

In his sixth, seventh, and eighth issues, Gilbert complains that the trial court erred by

(1) submitting a jury instruction on retreat, (2) failing to submit an instruction regarding the effect

of self-defense on the lesser-included offense of manslaughter, and (3) failing to submit different

manner and means of murder as separate charges.

A. Standard of Review and the Law Applicable to the Case

A two-step process is employed in our review of alleged jury charge error. See Abdnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error

occurred and then evaluate whether sufficient harm resulted from the error to require reversal.”

20
Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871

S.W.2d at 731–32).

“[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). “A trial

court must submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415 S.W.3d

915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC. ANN. art.

36.14 (West 2007)). “The purpose of the jury charge . . . is to inform the jury of the applicable

law and guide them in its application. It is not the function of the charge merely to avoid

misleading or confusing the jury: it is the function of the charge to lead and prevent confusion.”

Id. (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).

The level of harm necessary to require reversal due to jury charge error depends on whether

the appellant properly objected to the error. Abdnor, 871 S.W.2d at 732. Because Gilbert did not

object to the charge, we will not reverse unless the record shows the error led to egregious harm,

Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)), so that he did not receive a fair and

impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g);

Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—Texarkana 2008, no pet.). “Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory.” Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim.

App. 2007). We review “the entire jury charge, the state of the evidence, the argument of counsel,

and any other relevant information in the record as a whole” to make our determination. Villarreal

v. State, 205 S.W.3d 103, 106 (Tex. App.—Texarkana 2006, pet. dism’d, untimely filed) (citing

21
Almanza, 686 S.W.2d at 171). Direct evidence of harm is not required to establish egregious harm.

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

A trial court has the duty to provide the jury with “a written charge distinctly setting forth

the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007); Mendez v.

State, 545 S.W.3d 548, 551–52 (Tex. Crim. App. 2018). Because “[a]n unrequested defensive

issue is not the law applicable to the case,” the trial court has no duty to instruct the jury on the

issue. Taylor v. State, 332 S.W.3d 483, 487 (Tex. Crim. App. 2011) (citing Posey v. State, 966

S.W.2d 57, 62 (Tex. Crim. App. 1998)). Yet, if the trial court instructs the jury sua sponte on a

defensive issue, “that issue becomes ‘law applicable to the case,’ whether the defendant requested

it or objected to its absence or not.” Mendez, 545 S.W.3d at 552–53 (citing Barrera v. State, 982

S.W.2d 415, 416 (Tex. Crim. App. 1988)). In such an instance, the trial court must give the charge

correctly, and any error in the charge given is “subject to review under Almanza.” Id. at 553

(quoting Vega v. State, 394 S.W.3d 514, 516 (Tex. Crim. App. 2013)).

B. The Trial Court Did Not Err By Giving an Instruction on Failure to Retreat

In its charge on self-defense, the trial court gave the following instruction, apparently

sua sponte, 13 pursuant to Section 9.32, subsections (c) and (d), of the Texas Penal Code: 14

13
The record is unclear on whether one of the parties requested this instruction, or the trial court included it on its own.
Gilbert contends, and the State does not dispute, that the instruction was given by the trial court sua sponte.
14
Section 9.32, subsections (c) and (d), provide:

(c) A person who has a right to be present at the location where the deadly force is
used, who has not provoked the person against whom the deadly force is used, and who is not
engaged in criminal activity at the time the deadly force is used is not required to retreat before using
deadly force as described by this section.

22
 Failure to Retreat

A person who has a right to be present at a location where the person uses
deadly force against another is not required to retreat before using deadly force in
self-defense if both—

1. the person with the right to be present did not provoke the person against
whom the deadly force is used; and

2. the person is not engaged in criminal activity at the time the deadly force is
used.

Therefore, in deciding whether the state has proved that the defendant did
not reasonably believe his use of deadly force was necessary, you must not consider
any failure of the defendant to retreat that might be shown by the evidence if you
find both—

1. the defendant did not provoke [Phelps], the person against whom the
defendant used deadly force; and

2. the defendant was not engaged in criminal activity at the time he used the
deadly force.

If you do not find both 1 and 2, you may consider any failure of the defendant to
retreat that might be shown by the evidence in deciding whether the defendant
reasonably believed his use of deadly force was necessary.[15]

Gilbert contends that the trial court erred in giving this instruction because it was undisputed at

trial that Gilbert was engaged in criminal activity when he used deadly force. For that reason, he

argues, Section 9.32 was not law applicable to the case, so the instruction was erroneous and was

likely to confuse the jury so that it would conclude that he had a duty to retreat.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by
Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may
not consider whether the actor failed to retreat.

TEX. PENAL CODE ANN. § 9.32(c), (d) (West 2011).
15
We note that this instruction follows the pattern jury charge on failure to retreat. See Comm. on Pattern Jury Charges,
State Bar of Tex., Texas Criminal Pattern Jury Charges: Criminal CPJC 31.8 (2018).
23
 Gilbert does not contend that the trial court’s instruction was an incorrect statement of the

law as set forth in Section 9.32, subsections (c) and (d). As noted by the authors of the Texas

Criminal Pattern Jury Charges, “One reasonable reading of [Section 9.32, subsections (c) and (d),]

is that if a trier of fact finds the defendant was required to retreat and did not do so, this is to be

considered as bearing on whether the defendant reasonably believed the force the defendant used

was necessary as required by the general rule of self-defense.” Comm. on Pattern Jury Charges,

State Bar of Tex., Texas Criminal Pattern Jury Charges: Criminal CPJC 31.5 (2018). Indeed,

the Texas Court of Criminal Appeals has affirmatively stated that, “[w]hen [Section 9.32,

subsections (c) and (d),] do not apply, the failure to retreat may be considered in determining

whether a defendant reasonably believed that his conduct was immediately necessary to defend

himself or a third person.” Morales v. State, 357 S.W.3d 1, 5 (Tex. Crim. App. 2011). On the

other hand, the court indicated that a jury instruction on a general duty to retreat would be

erroneous since it is not authorized by statute and would be a comment on the weight of the

evidence. Id.

Here, the trial court’s charge does not contain an instruction indicating that Gilbert had a

duty to retreat. Rather, the trial court’s instruction correctly instructed the jury under Section

9.32(c) about when a defendant is not required to retreat. It also correctly instructed the jury under

Section 9.32(d) that, if it found that Gilbert met the conditions of subsection (c), then it must not

consider evidence of Gilbert’s failure to retreat. In accordance with Morales, and these sections,

the trial court then instructed the jury that, if it found that Gilbert did not meet the conditions of

subsection (c), then it may consider any evidence of Gilbert’s failure to retreat when determining

whether he reasonably believed that his use of deadly force was necessary. Gilbert admits that he

24
did not meet the conditions of Section 9.32(c). Thus, this final instruction was a correct statement

of “the law applicable to the case.” To place this instruction in the proper context, it was also

necessary to instruct the jury regarding Section 9.32, subsections (c) and (d).

We therefore find that the trial court did not err in giving the instruction on the failure to

retreat. For that reason, we overrule Gilbert’s sixth issue.

C. Gilbert’s Complaint Regarding the Manslaughter Instruction is Moot

In his seventh point of error, Gilbert complains that the trial court erred in failing to

distinctly apply the law of self-defense to the lesser-included offense of manslaughter and in failing

to explain how Section 9.05 of the Texas Penal Code 16 might apply to manslaughter. Since we

previously found that there is sufficient evidence supporting Gilbert’s conviction for murder, this

issue is moot. We overrule Gilbert’s seventh issue.

D. The Trial Court Did Not Err in its Instructions on Murder

In his eighth issue, Gilbert asserts that the trial court erred by submitting the State’s

alternative theories of murder as alternative means of committing a single offense. Although

Gilbert acknowledges that the State’s theories of how the murder of Phelps was committed

correspond to the three methods of first-degree murder contained in Section 19.02(b), he argues

16
Section 9.05 provides:

Even though an actor is justified under this chapter in threatening or using force or deadly force
against another, if in doing so he also recklessly injures or kills an innocent third person, the
justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing
of the innocent third person.

TEX. PENAL CODE ANN. § 9.05 (West 2011).
25
that each of the three methods contain a different mens rea and are, therefore, three different

offenses, which requires jury unanimity on one of the methods. 17

In addressing the requirement of jury unanimity in relation to an offense that may have

multiple ways of being committed, the Texas Court of Criminal Appeals has stated:

Under the Texas Constitution and Code of Criminal Procedure, a Texas jury must
reach a unanimous verdict. The jury must agree that the defendant committed one
specific crime. That does not mean, however, that the jury must unanimously find
that the defendant committed that crime in one specific way or even with one
specific act. The Legislature has considerable discretion in defining crimes and the
manner in which those crimes can be committed. That discretion is limited only by
the Due Process Clause of the federal constitution and the Due Course of Law
provision of the Texas Constitution.

In deciding what elements and facts a jury must unanimously agree on,
courts implement the legislative intent behind the penal provision. Both Texas and
federal courts have held that the jury must be unanimous in finding that the
defendant committed a specific statutory crime. But it is the legislature, not the
courts, that defines the forbidden act, the required culpability, and the particular
result, if any.

Landrian v. State, 268 S.W.3d 532, 535–36 (Tex. Crim. App. 2008) (citations omitted) (footnotes

omitted). Jury unanimity “means that each and every juror agrees that the defendant committed

the same, single, specific criminal act.” Ngo, 175 S.W.3d at 745.

As we have previously noted, the Legislature has provided that a person commits first

degree murder if he:

(1) intentionally or knowingly causes the death of an individual;

(2) intends to cause serious bodily injury and commits an act clearly
dangerous to human life that causes the death of an individual; or

17
In support of his argument, Gilbert cites to general statements of law contained in several cases involving lesser-
included offenses. While those statements may apply when analyzing a jury charge concerning lesser-included
offenses, they are generally inapplicable in this case.
26
 (3) commits or attempts to commit a felony, other than manslaughter,
and in the course of and in furtherance of the commission or attempt, . . . he commits
or attempts to commit an act clearly dangerous to human life that causes the death
of an individual.

TEX. PENAL CODE ANN. § 19.02(b).

Although the conduct may be very different, these three methods of committing murder

are not separate offenses, but rather alternative methods of committing the same offense. Smith,

436 S.W.3d at 378; Lozano, 359 S.W.3d at 821; see Aguirre, 732 S.W.2d at 325–26 (holding that

an indictment alleging theories of both intentional and knowing murder and felony murder did not

allege different offenses, but only different ways of committing the same offense); accord Barfield,

202 S.W.3d at 916. The State’s indictment alleged four alternate theories of how Gilbert murdered

Phelps, corresponding to the statutory manner and means of committing first-degree murder.

The trial court charged the jury in the disjunctive, tracking the indictment, and the jury

returned a general verdict. In a case involving capital murder, the Texas Court of Criminal Appeals

held that,

although the indictment may allege the differing methods of committing the offense
in the conjunctive, it is proper for the jury to be charged in the disjunctive. It is
appropriate where the alternate theories of committing the same offense are
submitted to the jury in the disjunctive for the jury to return a general verdict if the
evidence is sufficient to support a finding under any of the theories submitted.

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (citations omitted). In Aguirre,

the court found that it was proper to charge the jury in the disjunctive in a murder case in which

the state alleged alternative theories of intentional and knowing murder and felony murder,

“[b]ecause appellant’s indictment did not allege different offenses but only alleged different ways

of committing the same offense.” Aguirre, 732 S.W.2d at 326. Thus, in homicide cases, “different

27
legal theories involving the same victim are simply alternate methods of committing the same

offense.” Huffman v. State, 267 S.W.3d 902, 905 (Tex. Crim. App. 2008). In such a case, the jury

need not agree unanimously as to the manner and means by which the offense was committed. See

Aguirre, 732 S.W.2d at 326.

That said, Gilbert argues that the jury had to be unanimous regarding his mental state as he

aimed and fired the murder weapon, citing Ngo, 175 S.W.3d at 744. In Ngo, the victim’s credit

cards were stolen when her house was burglarized. A few weeks later, Ngo attempted to use the

credit cards to purchase beer at a bar. Id. at 741. At trial, the jury was charged disjunctively,

which allowed the jury to convict Ngo of credit card fraud by any one of three different acts, 18 but

the jurors were not required to be unanimous in their verdict as to any one act. Id. at 744–45.

Since the indictment alleged three different acts that occurred at three different times, the Texas

Court of Criminal Appeals held that the jury was required to be unanimous as to the same, single,

specific criminal act. Id. at 745.

Ngo is distinguishable from this case. Here, there was one act—firing four shots toward

an occupied vehicle—that occurred at one time and caused the death of Phelps. Thus, there was

only one criminal act. But the mental state of Gilbert in firing into the vehicle could be described

in a number of ways: (1) he could have intended to cause the death of Phelps (or another occupant

of the vehicle); (2) he could have been aware that firing the shots into the vehicle was reasonably

certain to cause the death of Phelps or another occupant; (3) he could have intended to cause one

of the occupant’s serious bodily injury and caused the death of Phelps; or (4) he could have

18
That is, by stealing the credit card, by receiving the card knowing it was stolen, or by presenting a credit card with
intent to obtain a benefit, knowing the use was without the effective consent of the owner. Ngo, 175 S.W.3d at 744.
28
committed deadly conduct and caused the death of Phelps. Under Section 19.02(b), each of these

theories simply describe different ways of committing the same offense, or criminal act, since there

was only one criminal act involving one victim. And in a case decided after Ngo, the Texas Court

of Criminal Appeals reaffirmed, “With respect to homicide offenses—which focus on the death of

an individual—‘we have held that different legal theories involving the same victim are simply

alternate methods of committing the same offense.’” Davis v. State, 313 S.W.3d 317, 342 (Tex.

Crim. App. 2010) (quoting Huffman, 267 S.W.3d at 905). Thus, the jury charge may disjunctively

allege alternative theories of murder found in Section 19.02, as long as there is only one victim,

and the requirement of jury unanimity will be satisfied.

For that reason, we find that the trial court did not err by submitting the State’s alternative

theories of murder as alternative means of committing a single offense. We overrule Gilbert’s

eighth issue.

IV. No Error in Admitting Evidence

In his third, fourth, and fifth issues, Gilbert asserts that the trial court erred in (1) admitting

evidence that improperly bolstered the testimony of one of the State’s witnesses, (2) admitting a

photograph of the victim in the hospital, and (3) admitting a video recording of the victim’s family

during the punishment phase of the trial.

A. Standard of Review

“We review a trial court’s decision to admit or exclude evidence for an abuse of discretion.”

Flowers v. State, 438 S.W.3d 96, 103 (Tex. App.—Texarkana 2014, pet. ref’d) (citing Martinez v.

State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010)). “Abuse of discretion occurs only if the

decision is ‘so clearly wrong as to lie outside the zone within which reasonable people might

29
disagree.’” Id. (quoting Taylor v. State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008);

Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)). “We may not

substitute our own decision for that of the trial court.” Id. (citing Moses v. State, 105 S.W.3d 622,

627 (Tex. Crim. App. 2003)). “We will uphold an evidentiary ruling if it was correct on any theory

of law applicable to the case.” Id. (citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.

App. 2009)).

B. Gilbert Waived his Bolstering Complaint

During Sheriff Tatum’s testimony, the State sought to have Tatum testify as to the details

of Larry’s second statement regarding the incident, to which Gilbert objected as hearsay. After a

short voir dire, the trial court sustained the objection. After cross-examination, a hearing was held

at the bench in which the State argued that Gilbert had opened the door to Tatum testifying about

Larry’s statement by its cross-examination, and the trial court allowed the State to solicit the

testimony. On appeal, Gilbert complains that the trial court erred because the admission of the

statement was improper bolstering of Larry’s and the other young men’s subsequent testimony and

that it deprived him of his right to confront and cross-examine witnesses against him.

“If a defendant objects to the admission of evidence but the same evidence is subsequently

introduced from another source without objection, the defendant waives his earlier objection.”

Bryant v. State, 282 S.W.3d 156, 165 (Tex. App.—Texarkana 2009, pet. ref’d) (quoting Massey v.

State, 933 S.W.2d 141, 149 (Tex. Crim. App. 1996)). After Tatum’s testimony, Larry testified

without objection that, after first telling Tatum a lie, he told him everything that happened,

including the details about the shooting. Since “substantively equivalent testimony to which he

30
had earlier objected was later admitted without objection,” Gilbert waived this issue for our review.

Id. at 166 (citing Massey, 933 S.W.2d at 149). We overrule Gilbert’s third issue.

C. Gilbert Waived his Complaints Regarding the Victim’s Photograph

In his fourth issue, Gilbert complains of the admission of a photograph of Phelps’ body

laying on a gurney while he was at the hospital. The photograph, State’s Exhibit 180, was offered

with a group of photographs taken at the hospital and marked State’s Exhibits 175 through 181.

Gilbert objected to Exhibit 180, asserting that it was prejudicial, inflammatory, irrelevant, and

cumulative. On appeal, Gilbert complains that the State only wanted to admit the photograph in

order to inflame the jury and that it was irrelevant. But an autopsy photograph of Phelps, which

is almost identical to Exhibit 180, was introduced earlier in the trial. The rule is the same, whether

substantially the same evidence is received without objection before or after the complained-of

ruling. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); see Valle v. State, 109

S.W.3d 500, 509 (Tex. Crim. App. 2003) (“To preserve error in admitting evidence, a party must

make a proper objection and get a ruling on that objection. . . . An error in the admission of

evidence is cured where the same evidence comes in elsewhere without objection.”). Gilbert has

therefore waived these complaints for our review. We overrule Gilbert’s fourth issue.

D. No Error in Admitting Video Recording of the Family During Punishment

In his fifth issue, Gilbert complains of the admission, during the punishment phase, of a

recording of Phelps’ family at the hospital. The recording was offered as victim-impact evidence.

Although Gilbert acknowledges that victim-impact evidence is admissible during the punishment

phase, he argues that the recording has no bearing on his personal responsibility and moral

culpability. See Haley v. State, 296 S.W.3d 549, 552 (Tex. Crim. App. 2009) (“Victim . . . impact

31
evidence . . . [is] admissible during the punishment phase if the fact[-]finder may rationally

attribute the evidence to the accused’s ‘personal responsibility and moral culpability.’”) (quoting

Salazar v. State, 90 S.W.3d 330, 335 (Tex. Crim. App. 2002)).

Under Article 37.07 of the Texas Code of Criminal Procedure, any evidence that the trial

court “deems relevant to sentencing” is admissible during the punishment phase of a trial. TEX.

CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2018); Sims v. State, 273 S.W.3d 291,

295 (Tex. Crim. App. 2008). If the evidence “will assist the fact[-]finder in deciding the

appropriate sentence in a particular case,” it is relevant to determining punishment. Sims, 273

S.W.3d at 295 (citing Mendiola v. State, 21 S.W.3d 282, 285 (Tex. Crim. App. 2000)).

That said, even if punishment-phase evidence is deemed relevant, it is subject to analysis

under Rule 403. 19 Rodriguez v. State, 203 S.W.3d 837, 843 (Tex. Crim. App. 2006). When

considering the admissibility of victim-impact evidence, the trial court must consider these factors:

“(1) how probative is the evidence; (2) the potential of the evidence to impress the jury in some

irrational, but nevertheless indelible way; (3) the time the proponent needs to develop the evidence;

and (4) the proponent’s need for the evidence.” Salazar v. State, 90 S.W.3d 330, 336 (Tex. Crim.

App. 2002). The trial court is presumed to have engaged in this analysis. Williams v. State, 958

S.W.2d 186, 195–96 (Tex. Crim. App. 1997).

We review the trial court’s analysis under an abuse-of-discretion standard and will only

overturn its ruling if it falls outside the “zone of reasonable disagreement.” Rodriguez, 203 S.W.3d

at 843 (quoting Robbins v. State, 88 S.W.3d 256, 260 (Tex. Crim. App. 2002)). There is no bright-

19
Rule 403 provides that relevant evidence may be excluded “if its probative value is substantially outweighed by a
danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” TEX. R. EVID. 403.
32
line test for deciding what evidence is and is not admissible as victim-impact evidence. Salazar,

90 S.W.3d at 336.

The Texas Court of Criminal Appeals has recognized that victim-impact evidence is

relevant when it “has some bearing on the defendant’s personal responsibility and moral

culpability.” Id. at 335 (citing Mosley v. State, 983 S.W.2d 249, 261–62 (Tex. Crim. App. 1998)).

The court explained this relevance:

As the Supreme Court stated in Payne v. Tennessee, such evidence is “designed to
show . . . each victim’s ‘uniqueness as an individual human being,’” and is a way to
inform “the sentencing authority about the specific harm caused by the crime in
question.” [501 U.S. 808, 823, 825 (1991)]. Such evidence is of two distinct, but
related, types: victim character evidence and victim impact evidence. The former
is designed to give the jury “a quick glimpse of the life that the petitioner chose to
extinguish, to remind the jury that the person whose life was taken was a unique
human being.” [Id. at 830–31]. The latter is designed to remind the jury that murder
has foreseeable consequences to the community and the victim’s survivors—family
members and friends who also suffer harm from murderous conduct.

. . . . But both defendants and juries must also know that the homicide victim is not
a faceless, fungible stranger. Id. at 838. Every homicide victim is an individual,
whose uniqueness the defendant did or should have considered, regardless of whether
the murderer actually knew any specific details of the victim’s life or characteristics.
See id.

Salazar, 90 S.W.3d at 335 (footnote omitted) (citations omitted).

In this case, before admitting the video recording, the trial court reviewed it and noted that

it was three minutes in length and showed the immediate impact on the family of learning of the

victim’s death. The recording confirms this analysis. The recording shows some of the family

members crying and distraught and other members trying to comfort them, but nothing unusual

that would impress the jury in an irrational or indelible way. In addition, the recording effectively

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showed the consequences to the victim’s survivors, without the need to have each family member

testify. 20 We find that all four factors favored admissibility of the recording.

As a result, we cannot say that the trial court’s decision was outside the zone of reasonable

disagreement. Rodriguez, 203 S.W.3d at 843. For that reason, we find that the trial court did not

err in admitting the recording. We overrule Gilbert’s fifth point of error.

V. Conclusion

For the reasons stated, we affirm the trial court’s judgment.

Scott E. Stevens
Justice

Date Submitted: February 12, 2019
Date Decided: April 3, 2019

Publish

20
Only one family member and one family friend testified during the punishment phase, both without objection.
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