James Tyshawn Pinkard v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00354-CR

James Tyshawn Pinkard, Appellant

v.

The State of Texas, Appellee

FROM THE 27TH DISTRICT COURT OF BELL COUNTY
NO. 77235, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant James Tyshawn Pinkard of felony murder. See Tex.

Penal Code § 19.02(c). In three issues, appellant contends that the evidence was insufficient to

support the jury’s guilty verdict, that the trial court abused its discretion by admitting the medical

examiner’s testimony that a robbery had occurred, and that appellant’s right to confrontation was

denied when he was not permitted to question a police officer who relayed testimonial

information to the medical examiner. For the following reasons, we affirm the judgment

of conviction.

BACKGROUND

The jury heard evidence that on the evening of March 7, 2017, at an apartment

complex, Rocky Marsh was robbed, stabbed with a screwdriver, and struck with a saw. Marsh

sustained a fatal “penetrating wound” “on the upper left side of the chest” and “chop wounds on
the top of his head.” In response to 911 calls, EMS and the police were dispatched to the scene,

but they were unable to resuscitate Marsh. Marsh’s front pants pockets had been pulled out, and

he did not have his phone or other belongings on his person.1

In their investigation, the police recovered a saw, a beer bottle, and a black bag of

the type used at a nearby convenience store, and they obtained surveillance-video footage from

the convenience store. A portion of the footage contained audio and video capturing a verbal

altercation between appellant and Marsh, which occurred right outside the store a short time

before Marsh was killed. The footage shows Marsh walking behind a vehicle with his phone,

appellant getting outside of the vehicle from the front passenger seat and verbally confronting

Marsh, saying “[y]ou don’t know whose streets you’re on,” that appellant “[will] get somebody

to come over and handle this shit, bro,” and “[b]e here when [appellant got] back. Watch how

many people are going to be here.” Appellant also told Marsh to “get away from [appellant’s]

baby’s mama” and that Marsh “already pulled [a] knife.” The video then shows appellant getting

back into the vehicle’s front passenger seat holding a crowbar and the vehicle driving away.

Approximately fifteen minutes later, the vehicle returned briefly before leaving again. From the

footage, the police were able to identify the vehicle and determined that it was registered to

appellant. Following a traffic stop the next day, the police arrested appellant and his girlfriend

Erica Brownlee who was pregnant with appellant’s child. The police found a crowbar, knife, and

a Phillips-head screwdriver in the vehicle as well as blood stains that were later linked to Marsh

through DNA testing.

1
The responding officer who performed CPR on Marsh until EMS arrived testified at
trial: “There was nothing in his pockets. The actual pocket, when you stick your hands, pull that
lining out, I guess, where the pockets were pulled out, the material.”
2
 The State subsequently indicted appellant for felony murder of Marsh, alleging

that he

did then and there, acting individually and as a party with Shamar Lamar Lewis,
Elijah Jones, and Erica Brownlee, intentionally and knowingly commit or attempt
to commit an act clearly dangerous to human life, to-wit: by hitting and striking
Rocky Marsh with a saw and hitting and striking and stabbing Rocky Marsh with
a screwdriver, and the defendant, acting individually and as a party with Shamar
Lamar Lewis, Elijah Jones, and Erica Brownlee was then and there in the course
of intentionally and knowingly committing a felony, to-wit: Aggravated Robbery,
and the death of Rocky Marsh was caused while the defendant, acting
individually and as a party with Shamar Lamar Lewis, Elijah Jones, and Erica
Brownlee was in the course of and in furtherance of or the immediate flight from
the commission or attempt of the Aggravated Robbery.

Appellant, his brother Shamar Lamar Lewis, and Elijah Jones were members of the Long Branch

Posse gang.

The State’s cases against appellant and Brownlee were joined and proceeded to a

jury trial in January 2019.2 The State’s witnesses were investigating officers and detectives, the

medical examiner who performed the autopsy, the store’s owner who testified about the

surveillance-video footage, a forensic scientist who provided DNA testimony, and Jones who

was a juvenile in March 2017. The evidence showed that following the verbal altercation

between appellant and Marsh, Brownlee and appellant drove away from the store and picked up

Lewis and Jones. After picking up Lewis and Jones, they drove back to the store and then to the

apartment complex where they found and confronted Marsh.

Jones testified that he pled guilty as a party to capital murder of Marsh, was

sentenced to thirty years’ confinement, agreed to be a witness as part of the plea agreement, and

was currently in the Texas Juvenile Justice Department-Institutional Division. As to the events
2
The jury also found Brownlee guilty, and she has appealed from the trial court’s
judgment of conviction in this Court’s cause number 03-19-00353-CR.
3
surrounding Marsh’s murder, he testified that members of the Long Branch Posse did not like

strangers taking their pictures and that he was with Lewis when appellant called him and told

him that a “dude” had “threatened” appellant and his “baby’s mama” Brownlee with a knife and

took a picture of appellant’s vehicle’s license plate on Marsh’s phone. Appellant then told Jones

that “he was going to come get [them].” With Brownlee driving, appellant and Brownlee picked

up Jones and Lewis, and they drove around to “find the dude that threatened him with the knife”

to “[b]eat him up” and “[t]ake his phone.” Appellant told Lewis that he had a crowbar and that

there was another one in the trunk. Brownlee saw Marsh at the apartment complex and “drove

towards him.” After she stopped the vehicle and “popped” the trunk, Lewis took out a “[s]aw

and screwdriver” from the trunk. Appellant got out of the vehicle with a crowbar and confronted

Marsh, Lewis hit Marsh “in the back of the head” with the saw and stabbed and stomped on him,

and appellant “came and went in [Marsh’s front] pockets” and “took [his] phone and lighter” and

a “knife.” They then left in the vehicle with Brownlee driving to take Jones home, but they

turned around to go back to the apartments because Lewis “told [them] he dropped the saw.”

They were unable to retrieve the saw because the police had already arrived.

The State’s exhibits included: (i) photographs of Marsh; the scene; items

recovered at the scene including the saw, bottle of beer, and black bag; and items found in

appellant’s vehicle including the crowbar and screwdriver; (ii) 911 calls reporting the crime;

(iii) the video-surveillance footage from the store; (iv) the DNA laboratory report; and (v) the

autopsy report. The evidence showed that Marsh purchased a bottle of beer at the convenience

store shortly before the murder, and the black bag found at the scene matched the type of bag

that the convenience store used. DNA testing linked Marsh to the “blade portion with the teeth”

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of the saw that was recovered from the scene and to stains found in the vehicle. Appellant’s

DNA was linked to the knife that was in the vehicle when he was arrested the following day.

Appellant did not call any witnesses during the trial’s guilt-innocence phase. The

jury found appellant guilty, and the trial court thereafter held a punishment hearing and

sentenced appellant to thirty-five years’ confinement. This appeal followed.

ANALYSIS

Sufficiency of the Evidence

In his first issue, appellant contends that the evidence is insufficient to support the

jury’s guilty verdict because according to appellant, Jones was the only testifying witness present

during the incident, and Jones testified that there was never a plan to rob Marsh or to take his

phone, he never thought anyone would be killed, and Lewis was the only person to strike Marsh.

Standard of Review

Due process requires that the State prove, beyond a reasonable doubt, every

element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316–17 (1979); Lang v. State,

561 S.W.3d 174, 179 (Tex. Crim. App. 2018). When reviewing the sufficiency of the evidence

to support a conviction, we consider all the evidence in the light most favorable to the verdict to

determine whether, based on that evidence and the reasonable inferences therefrom, any rational

trier of fact could have found the essential elements of the offense beyond a reasonable doubt.

Jackson, 443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

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

See Zuniga v. State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. State, 483 S.W.3d 29,

33 (Tex. Crim. App. 2016); see also Tex. Code Crim. Proc. art 36.13 (stating that “the jury is the

5
exclusive judge of the facts”). We presume that the trier of fact resolved conflicts in the

testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the

verdict. Jackson, 443 U.S. at 319. When the record supports conflicting reasonable inferences,

we presume that the factfinder resolved the conflicts in favor of the verdict, and we defer to that

resolution. Zuniga, 551 S.W.3d at 733; Cary v. State, 507 S.W.3d 750, 757 (Tex. Crim. App.

2016) (citing Jackson, 443 U.S. at 326).

Felony Murder

As charged in this case, the State had to prove that appellant, individually or as a

party, committed or attempted to commit aggravated robbery and, in the course and in

furtherance of the commission or attempt, he, individually or as a party, committed or attempted

to commit an act clearly dangerous to human life that caused Marsh’s death. See Tex. Penal

Code §§ 7.01, 19.02(b)(3). A person commits robbery if, in the course of committing theft and

with intent to obtain or maintain control of property, he “intentionally, knowingly, or recklessly

causes bodily injury to another,” see id. § 29.02(a)(1), and the offense of robbery is aggravated

when the person “causes serious bodily injury to another,” see id. § 29.03(a)(1). Because

the charge authorized the jury to convict appellant individually or as a party, we must

uphold the verdict of guilt if the evidence is sufficient on either theory. See Anderson v. State,

416 S.W.3d 884, 889 (Tex. Crim. App. 2013) (explaining that when charge authorizes jury to

convict appellant on more than one theory, “the verdict of guilt will be upheld if the evidence is

sufficient on any theory authorized by the jury charge” (citing Guevara v. State, 152 S.W.3d 45,

49 (Tex. Crim. App. 2004))).

6
 “A person is criminally responsible as a party to an offense if the offense is

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

or both.” Tex. Penal Code § 7.01(a). “A person is criminally responsible for an offense

committed by the conduct of 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). Section 7.02(b) of the Penal Code

further provides:

If, in the attempt to carry out a conspiracy to commit one felony, another felony is
committed by one of the conspirators, all conspirators are guilty of the felony
actually committed, though having no intent to commit it, if the offense was
committed in furtherance of the unlawful purpose and was one that should have
been anticipated as a result of the carrying out of the conspiracy.

Id. § 7.02(b). “Party participation may be shown by events occurring before, during, and after

the commission of the offense, and may be demonstrated by actions showing an understanding

and common design to do the prohibited act.” Salinas v. State, 163 S.W.3d 734, 739–40 (Tex.

Crim. App. 2005) (citing Ransom v. State, 920 S.W.2d 288, 302 (Tex. Crim. App. 1994)); see

Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012). “Evidence is sufficient to convict

under the law of parties where the defendant is physically present at the commission of the

offense and encourages its commission by words or other agreement.” Salinas, 163 S.W.3d

at 739.

Appellant does not dispute that he was present when Marsh was killed but

challenges the sufficiency of the evidence to show that he “intentionally and knowingly

committed an act clearly dangerous to human life” or that he “committed the offense of

aggravated robbery during the commission of the alleged offense.” He contends that “there was

7
never any plan to kill anyone”; he “never touched Marsh”; there was no plan to rob Marsh; and if

Jones’s testimony was truthful, appellant “only took belongings from Marsh’s pocket after Lewis

had already killed Marsh.” Appellant relies on Jones’s testimony during cross-examination.

Jones testified that in the vehicle when they were looking for Marsh, they did not discuss that

they were going to take Marsh’s phone or beat Marsh up, that he did not believe that there was a

possibility that a man would be killed, that Lewis was the only person who struck Marsh, and

that appellant “went in [Marsh’s] pockets” and “took his phone and lighter” and “knife” after

Marsh had fallen to the ground.

The State, however, was not required to prove that appellant intended to kill

Marsh or that Marsh was still alive when appellant took Marsh’s property.3 See Tex. Penal Code

§§ 7.02(b), 19.02(b)(3). A rational trier of fact also could have found that portions of Jones’s

testimony were not credible and resolved the inconsistencies in his testimony in favor of the

verdict. See Jackson, 443 U.S. at 319; Zuniga, 551 S.W.3d at 733. Jones admitted that he had

given three different statements to law enforcement, had not told the entire truth, and had lied.

Further the jury reasonably could have credited the video-surveillance footage that captured the

verbal altercation between appellant and Marsh outside the store to conclude that appellant and

the others planned to rob Marsh. In the footage, appellant is seen holding a crowbar and telling

Marsh that “[y]ou don’t know whose streets you’re on,” appellant “[will] get somebody to come

over and handle this shit, bro,” and “[b]e here when [he got] back. Watch how many people are

going to be here.”

3
Even if the State were required to show that Marsh was alive when appellant removed
Marsh’s property, one of the 911 callers stated that Marsh appeared to be breathing “barely but
not much.”
8
 The video footage showed that Marsh was holding his phone during the

altercation at the store. After the altercation, appellant sought the assistance of Brownlee and

fellow members of Long Branch Posse, Lewis and Jones, to locate Marsh. Jones testified that

appellant called him about the “dude” who “threatened” him and Brownlee with a knife and took

a picture of his license plate and asked where Lewis was. Appellant and Brownlee then picked

up Jones and Lewis, and they drove around to “find the dude that threatened [appellant] with the

knife” to “beat him up” and “take his phone.” Jones also testified that members of Long Branch

Posse did not like strangers taking their pictures. According to Jones, appellant told Lewis that

“he got a crowbar and that there’s another one in the trunk,” and to tell Brownlee “to pop the

trunk so [Lewis] can get the crowbar out of the trunk when [they saw Marsh].” Jones testified

that once they located Marsh, appellant got out of the vehicle with a crowbar and asked Marsh,

“Do you remember me?” Lewis then used a saw and screwdriver that he got out of the trunk to

strike and stab Marsh.4 Appellant took Marsh’s phone, lighter, and knife; and the four of them

left the scene together. When the police arrived, Marsh did not have his phone, and his pockets

were pulled out. The police recovered a knife in appellant’s vehicle.

The jury reasonably could have credited this evidence to find that appellant

planned with the others to rob Marsh of his property; “should have . . . anticipated” “an act

clearly dangerous to human life” when they decided to rob Marsh using a saw, screwdriver, and

crowbar, see Tex. Penal Code § 7.02(b); and solicited the others’ assistance, directed and

encouraged Lewis, and actively participated in robbing Marsh, see id. § 7.02(a)(2); Salinas,

163 S.W.3d at 739–40; see also Hanson v. State, 55 S.W.3d 681, 688–90 (Tex. App.—Austin

4
In one of his sworn statements that was admitted as an exhibit, Jones recounted that
Lewis “said he had a saw, but he threw it down because it wasn’t knocking the man out and that
he couldn’t find the crowbar in the trunk.”
9
2001, pet. ref’d) (holding that there was legally sufficient evidence to find defendant guilty of

capital murder as party where defendant knew about plan to rob complainant, provided weapon

that was used to kill complainant, and retrieved weapon after killing). Thus, we conclude that

the evidence was sufficient to support the jury’s guilty verdict and overrule appellant’s

first issue.

Statement in Autopsy Report

In his second issue, appellant contends that “the trial court abused its discretion in

allowing the Medical Examiner to give his opinion that a robbery occurred where he had no

expertise or personal knowledge to do so” and that he was harmed by the erroneous admission.

At trial, appellant objected to and sought to have the following statement redacted from the

autopsy report: “History that the decedent was found unresponsive after being assaulted by other

individuals during an apparent robbery.” The trial court overruled appellant’s objection and

admitted the autopsy report without redacting the statement.

Standard of Review and Applicable Law

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

discretion. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018); Henley v. State,

493 S.W.3d 77, 82–83 (Tex. Crim. App. 2016). “An abuse of discretion does not occur unless

the trial court acts ‘arbitrarily or unreasonably’ or ‘without reference to any guiding rules and

principles.’” State v. Hill, 499 S.W.3d 853, 865 (Tex. Crim. App. 2016) (quoting Montgomery

v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)). Further, we may not reverse the trial

court’s ruling unless the determination “falls outside the zone of reasonable disagreement.”

Johnson v. State, 490 S.W.3d 895, 908 (Tex. Crim. App. 2016); see Henley, 493 S.W.3d at 83

10
(“Before a reviewing court may reverse the trial court’s decision, ‘it must find the trial court’s

ruling was so clearly wrong as to lie outside the zone within which reasonable people might

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

evidentiary ruling will be upheld if it is correct on any theory of law applicable to the case.

Henley, 493 S.W.3d at 93 (citing De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.

App. 2009)).

“A witness who is qualified as an expert by knowledge, skill, experience, training,

or education may testify in the form of an opinion or otherwise if the expert’s scientific,

technical, or other specialized knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue.” Tex. R. Evid. 702. “An expert may base his opinion on facts or

data in the case that the expert has been made aware of, reviewed, or personally observed” and

the facts or data “need not be admissible for the opinion to be admitted” when “experts in the

particular field would reasonably rely on those kinds of facts or data in forming an opinion on

the subject.” Id. R. 703. An expert witness generally may testify about the facts and data

underlying his opinions. See id. R. 705.

History Statement

Appellant does not dispute that the medical examiner was an expert in the medical

field and qualified to opine on the manner and cause of Marsh’s death. Appellant contends that

the medical examiner was “not an expert in the legal field” and, thus, that he “should not have

been allowed to give his opinion that Marsh died because he was assaulted during a robbery.”

Appellant also argues that the medical examiner’s “opinion was one which supplanted the jury’s

decision because he testified to an ultimate question” and that the medical examiner did not have

11
personal knowledge. See Tex. R. Evid. 701 (limiting lay witness’s opinion “to one that is . . .

rationally based on the witness’s perception”).

The history statement, however, is not properly characterized as an expert

opinion. The report and the medical examiner’s testimony make clear that the statement was part

of the underlying facts or data that the medical examiner relied on in forming his expert opinion.

See id. R. 703, 705. In his testimony before the jury, the medical examiner confirmed that he

had no direct knowledge of the history statement, that it was “investigative information provided

to him,” and that the history statement “[was] just a history you take the way a doctor would take

the history of a patient.” He further described what the history statement was:

History—so in the course of putting an autopsy report together, we utilize as
much information as we have access to including what we see at the time of the
autopsy, any investigative information that either our investigators obtain or we
obtain through speaking with law enforcement, toxicology findings, microscopic
evidence, if that’s performed, in order to get a full picture and render the most
accurate opinion on cause and manner. So in this case in particular—well,
through the autopsy alone, the history was that the decedent was found
unresponsive and his injuries were consistent with having been assaulted. And
the investigative information was that he was assaulted by some other individuals
during what may have been a robbery.

Prior to the autopsy report’s admission and outside the jury’s presence, the

medical examiner testified that “investigative information” is among the types of information

that are “vital” when they were “trying to render an opinion on cause and manner of death.” He

further testified:

The investigating detective was the one who relayed it, originally when it was
called in and then also later on that there are witnesses who reported they [had]
seen him get assaulted, we saw injuries consistent with that. And then as far as
the robbery, it was just part of the information that the decedent’s belongings
were absent and that just came as part of the investigation. It’s also why it’s just

12
 listed as a history statement. It’s just something that we have been told. I don’t
know personally a hundred percent fact to that, but it’s consistent with the story.

***

. . . we use investigative information all the time to render an opinion on manner
of death.

***

But my point is, the history that I was given up until completing the report was
that the decedent had been assaulted, which we see injuries consistent with that,
and that it was possibly during a robbery. And that’s why I say apparent because
I don’t know that there was a robbery.

Based on the medical examiner’s testimony, the trial court reasonably could have concluded that

the history statement was among the types of facts or data on which experts in his field

reasonably rely. See Tex. R. Evid. 703. Thus, we conclude that the trial court did not abuse its

discretion in overruling appellant’s objection to the history statement’s admission. We overrule

appellant’s second issue.

Confrontation Clause

In his third issue, appellant argues that he was denied the right to confront a

witness when the trial court allowed the medical examiner “to show the jury a screwdriver that a

police officer told him could have caused Marsh’s injuries.”

Standard of Review and Applicable Law

The Confrontation Clause bars admission of testimonial statements of a witness

who does not appear at trial unless the witness is unavailable and the defendant had a prior

opportunity for cross-examination. See U.S. Const. amend. VI (including, among rights of

accused in criminal prosecutions, right “to be confronted with the witnesses against him”); Davis

13
v. Washington, 547 U.S. 813, 821–22 (2006) (discussing Confrontation Clause and explaining

distinction between testimonial and non-testimonial statements (citing Crawford v. Washington,

541 U.S. 36, 53–54 (2004))); see also Woodall v. State, 336 S.W.3d 634, 642 (Tex. Crim. App.

2011) (“[T]o implicate the Confrontation Clause, an out-of-court statement must: (1) have been

made by a witness absent from trial and (2) be testimonial in nature.”).

“Although we defer to a trial court’s determination of historical facts and

credibility, we review a constitutional legal ruling, i.e. whether a statement is testimonial or non-

testimonial, de novo.” Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006); see Cook

v. State, 199 S.W.3d 495, 497 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (explaining that

appellate court reviews de novo trial court’s ruling that admission of evidence did not violate

defendant’s rights under Confrontation Clause); Davis v. State, 169 S.W.3d 660, 665 (Tex.

App.—Austin 2005), aff’d 203 S.W.3d 845 (Tex. Crim. App. 2006) (same).

Statement to Medical Examiner Concerning the Screwdriver

Appellant contends that his right to confront a witness was violated when the

medical examiner referenced a police officer’s statement to the medical examiner that the

screwdriver could have caused Marsh’s injuries. The record does not support appellant’s

contention. The medical examiner testified that he spoke with law enforcement after he

concluded the autopsy and had “concerns about trying to figure out exactly what caused the

injuries” and that a detective sent him “some photographs of some tools they found and believed

to be related to the crime.” The medical examiner did not testify that the detective told him that

14
the screwdriver caused the injuries,5 and appellant does not dispute that the police found a

Phillips-head screwdriver in his vehicle. In this context, the medical examiner reasonably relied

on and testified about the photograph of a Phillips-head screwdriver to explain his underlying

reasoning as to his opinion of the cause and manner of death. See Tex. R. Evid. 703, 705(a).

The medical examiner testified that the penetrating wound was consistent with “the shape of the

tip” of a Phillips-head screwdriver because it “has kind of a cross at the tip which can leave a

particular pattern injury, which is similar to [Marsh’s wound].”

We also observe that the detective who searched appellant’s vehicle and found the

screwdriver, the detective who accompanied Marsh’s body to the medical examiner for the

autopsy, and the lead detective testified at trial. Thus, even if statements from detectives to the

medical examiner were testimonial in nature, appellant had the opportunity to question the

detectives at trial about their statements to the medical examiner, but he chose not to do so. We

conclude that appellant has not shown a Confrontation Clause violation and overrule appellant’s

third issue.

CONCLUSION

Having overruled appellant’s issues, we affirm the trial court’s judgment

of conviction.

5
When the prosecutor was proving up the predicate for admitting the photograph, the
medical examiner did not finish his answer about what the detective told him because defense
counsel objected. The medical examiner testified: “. . . But we determined that this wasn’t a
gunshot wound for the reasons that I mentioned before. And once the detective I was speaking
with told me they thought maybe the screwdriver was—.” It was at that point that defense
counsel objected, and the medical examiner did not finish his answer.
15
 __________________________________________
Melissa Goodwin, Justice

Before Justices Goodwin, Kelly, and Smith

Affirmed

Filed: May 27, 2021

Do Not Publish

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