In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-17-00281-CR
________________
TYRECE D’ANDRE HARRIS, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the Criminal District Court
Jefferson County, Texas
Trial Cause No. 16-24974
__________________________________________________________________
MEMORANDUM OPINION
A jury convicted appellant Tyrece D’Andre Harris of murder and assessed
punishment at confinement for life. In five appellate issues, Harris argues that (1)
the evidence was insufficient to support his conviction because the testimony of
three accomplice witnesses was not corroborated; (2) he was denied a fair trial
because the trial court did not properly submit an accomplice witness instruction;
(3) the trial court erred by overruling his objection to a video showing him with a
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handgun; (4) the trial court erred by overruling his objection to “question and
testimony” regarding whether witnesses were lying after the State created a false
impression during its cross-examination of Harris’s mother; and (5) he was denied
due process by the introduction of evidence that he was continuously in custody from
arrest through trial. We affirm the trial court’s judgment.
THE EVIDENCE
Khari Walker testified that Harris brought her home from school on April 20,
2016. Walker testified that Harris had music playing in the car and was holding a
“really small” shiny silver gun in his hand. According to Walker, she videoed Harris
holding the gun, and a copy of the video was introduced into evidence and played
for the jury over defense counsel’s Rule 404(b) objection. The State argued that the
evidence was relevant because the firearm depicted in the video matched the
description of the firearm Harris possessed on the night of the shooting. In overruling
defense counsel’s objection, the trial judge stated that the evidence was admissible
under Rule 404, was relevant as “direct evidence toward the commission of the
elements of the offense,” and the probative value of the evidence was not
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
misleading the jury, “or other considerations under Rule 403 and is admissible.”
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The victim’s wife, Nicola, testified that on April 26, 2016, she and the victim
had left the garage door of their home partially open because she was feeding some
cats in the neighborhood. Nicola explained that her son slept with her at night, and
the victim usually slept downstairs. According to Nicola, the victim typically
awakened before she did, and he would come upstairs around 6:30 a.m. to wake her
and take their son downstairs. Nicola awakened at approximately 6:55 a.m. on the
date in question and saw that her son was still in bed beside her, and she realized
that the victim had not been upstairs. Nicola testified that she called the victim’s cell
phone, and she could hear it ringing downstairs. Nicola became worried that
something was wrong, so she went downstairs to look for the victim, and when she
went toward the kitchen, she saw him lying on the floor on his left side, and he
appeared to be dead. Nicola called 911 and rolled the victim onto his back to attempt
CPR, but after performing a few compressions, she realized that he was dead.1
Nicola testified that she believed the murder occurred at approximately 2:30 a.m.
because “a neighbor heard something that woke her up.”
Officer Jimmy Bartley of the Beaumont Police Department testified that he
was dispatched to the victim’s residence on the date in question, and although he
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A recording of the 911 call was admitted into evidence and played for the
jury during the testimony of Sergeant Shawn Tolley, who supervises the 911 center
and dispatch office for the Beaumont Police Department.
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was the first officer to arrive, EMS and the fire department were already at the scene.
Bartley testified that he found the victim in the kitchen area, and he saw a wound
under the victim’s left arm. When Bartley realized that the victim did not die a
natural death, he notified his sergeant and asked that detectives come to the scene.
Upon checking outside the victim’s residence, officers found a backpack or duffel
bag and a white shirt near the garage door.
Officer Gerome Watkins with the City of Beaumont Police Department
testified that he was dispatched to the victim’s residence to secure the scene from
the outside and to assist Bartley. Watkins explained that while walking along the
side of the victim’s residence, he saw an Apple cell phone lying in the grass. Watkins
also saw a black duffel bag with a pair of pliers and a white T-shirt on top of it.
Angelica Hernandez, a technician for the Beaumont Police Department,
testified that she responds to scenes to assist detectives and officers, takes
photographs and videos, collects evidence, and processes the scene “for any kind of
items of evidentiary value.” Hernandez responded to the scene at the victim’s home.
A video of the walkthrough was admitted into evidence. According to Hernandez,
one of the items she collected was an iPhone. Hernandez swabbed the iPhone for
DNA and processed it for fingerprints. In addition, Hernandez collected a white T-
shirt from the scene. According to Hernandez, she also collected a black duffel bag,
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which contained a pair of pliers and two live rounds of ammunition. Hernandez
testified that the ammunition rounds were pistol rounds.
Detective Sergeant Patrick Barton of the Beaumont Police Department
testified that patrol called him to the scene. Upon arriving, Barton saw “[t]he body
of an apparently deceased person in the kitchen.” Barton observed that the victim
had an entry wound, possibly a gunshot wound, under his left arm. Barton and two
other detectives spoke with Nicola to obtain information from her. According to
Barton, based upon the appearance of the blood beneath the victim, the victim had
likely been deceased for several hours.
Barton testified that an Apple iPhone was found in the grass adjacent to the
fence, and a duffel bag was located near the garage. Barton explained that one of the
other detectives located the owner of the phone, Reginald Collins. Barton testified
that learning Collins’s identity and taking his statement significantly narrowed the
focus of the investigation. According to Barton, after Collins’s statement was taken,
officers learned of three individuals with whom they needed to speak: Tyrese
Corbin, Javarian Brooks, and Harris. Barton explained that what Collins, Corbin,
and Brooks related to officers was against their penal interest, and after speaking
with those men, the police developed Harris as a suspect in the victim’s murder and
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obtained a warrant for Harris’s arrest. Barton testified that Harris ultimately turned
himself in at the police station.
Barton testified that Collins, Corbin, and Brooks were never arrested
regarding the death of the victim. Barton explained that Collins stated that he,
Corbin, Brooks, and Harris were together on the night of the victim’s murder, and
“they were going to that neighborhood looking for unlocked cars to burglarize[.]”
Collins related to the authorities that when he and the others arrived at the victim’s
address, they noticed that the garage door was open, and Harris decided to burglarize
the garage, so Collins and Harris entered the garage, with Harris using the flashlight
app on Collins’s iPhone. Barton testified that upon entering the garage, Collins and
Harris heard the victim yell and turn on a light, and Collins exited by ducking under
the garage door the same way he and Harris had entered. According to Barton, when
Collins got outside, he heard a gunshot. Collins told officers that when Harris
returned to the car, he no longer had the phone. Barton testified that Corbin “told the
same story that Reggie Collins did.” Barton explained that, according to Collins,
Harris left the garage and jumped over the fence in the same area where the phone
was found. According to Barton, the duffel bag was found at the entrance to the
garage.
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Officer David Apple of the Beaumont Police Department testified that he also
responded to the scene. He testified that the iPhone belonged to Reginald Collins’s
grandmother. Apple explained that officers interviewed Collins, and Collins
provided the names of Corbin and Brooks, and after officers interviewed Corbin and
Brooks, Harris became a suspect. According to Apple, two auto burglaries occurred
in the victim’s neighborhood on the same night as the victim’s death, and the
occurrence of those burglaries coincided with information yielded from the
interviews.
Corbin testified that on the date of the offense, he, Brooks, Collins, and Harris
went to the area to burglarize vehicles. Corbin testified that no one was carrying a
backpack or duffel bag. According to Corbin, Harris was driving. Corbin explained
that the group had decided to leave the area after burglarizing some cars, but Harris
told the others that he had seen a “little house that we could go to and the garage is
open.” Corbin testified that he and Brooks laid down and looked inside the garage
but did not enter it, but Harris and Collins did enter the garage by crawling
underneath the door. Corbin testified that Harris and Collins were in the garage for
approximately three minutes. As Corbin looked down, he saw the light in the garage
come on and then “just heard pow, pow[,]” and he and Brooks ran toward the car.
According to Corbin, one of the noises he heard was Collins striking his head going
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under the garage door. Corbin explained that Harris and Collins subsequently got to
the car, and Corbin smelled gunpowder. According to Corbin, the group eventually
reached Brooks’s house, and Collins realized that his phone was missing. Corbin
testified that he did not know whether Collins or Harris killed the victim because he
was not in the garage.
Brooks testified that on the night in question, he, Harris, Collins, and Corbin
had gathered at Brooks’s house, and they decided to burglarize cars on the west end
of town. When they arrived, Brooks went with Corbin, and Harris went with Collins.
After Brooks and Corbin had gone through some cars, the four reunited and had
decided to leave, but Harris saw a garage that was “halfway open” and decided to
crawl underneath the door, and Collins went into the garage with Harris. Brooks
testified that Harris was using Collins’s phone for light because Harris’s phone
battery had died, and he explained, “that’s how [Collins] got involved [in] going
under the garage with him.” Brooks testified that he and Corbin stayed outside the
garage. While Harris and Collins were inside the garage, Brooks saw a light come
on and heard a gunshot, and Brooks and Corbin ran to the car. Brooks heard Collins
strike his head as Collins was leaving the garage. Brooks explained that he saw
Harris running with a gun. According to Brooks, when Harris arrived at the car, he
had “a chrome gun, a pistol.” When shown the video of Harris, Brooks testified that
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the gun in the video looked like the gun Harris had on the night of the offense.
According to Brooks, Harris told the others not to say anything about what
happened.
Collins testified that he, Brooks, Harris, and Corbin were at Brooks’s house
on the night of the offense, and Harris brought up the idea of making some money
by “carhopping[.]” According to Collins, Harris stole speakers and car television
sets. Collins explained that as he and Harris were walking back toward Harris’s car,
Harris stated that he had noticed a garage door that was slightly open and “he wanted
to go check out the garage.” Collins testified that Harris looked under the door and
then Harris went in and asked Collins to follow him “because his phone was dying[,]
and he was going to need my light because it was dark inside there.”
Collins testified that he followed Harris into the garage and looked around,
and while they were inside, Harris asked Collins for his phone. According to Collins,
he and Harris heard footsteps and “got real still.” Collins explained that the footsteps
grew closer and he heard the light switch, so he dove toward the garage door to leave,
and he hit his head but managed to get out. Collins testified that after he managed to
get out, he heard a gunshot and ran. Collins also saw Corbin and Brooks running,
and they were panicking because they did not know what happened. According to
Collins, Harris arrived one or two minutes later and had something in his hand.
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Collins testified that as Harris got closer to them, they could see that Harris had a
small, silver chrome gun. Collins testified that smoke was coming out of the tip of
the gun. Collins further testified that the gun in Harris’s hand that night was the same
gun depicted in the video. According to Collins, Harris told the others that he had
been wrestling with the victim and that he had missed when he shot at the victim. In
addition, Collins stated that Harris repeatedly told them not to tell anyone.
Dr. John Ralston, the chief forensic pathologist for Forensic Medical of
Texas, testified that he performed an autopsy on the victim’s body. Ralston testified
that the victim had blood on his clothing and his body had “a gunshot wound of
entrance and [a] gunshot wound of exit[.]” According to Ralston, the projectile had
left the victim’s body, so Ralston was unable to recover it. Ralston opined that the
victim’s cause of death was a gunshot wound to the chest, consistent with a
homicide. Ralston explained that the bullet punctured the victim’s lung and caused
a substantial hemorrhage, but the victim did not die immediately.
Ashlee Kibbe, a forensic scientist with the Texas Department of Public Safety
Crime Laboratory in Houston, testified that Harris’s DNA was found on one of the
cuttings from the white T-shirt found at the crime scene, and the victim was excluded
as a contributor. Kibbe explained that three individuals contributed to the DNA
found on the T-shirt. According to Kibbe, Harris and one other individual
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contributed to DNA found on the second cutting from the T-shirt, and the victim was
excluded as a contributor. Kibbe testified that Harris and three other individuals also
contributed DNA to a swab from the T-shirt, and the victim was excluded as a
contributor.
After the State and Harris had rested, the prosecutor and Harris’s counsel both
stated that they had no objections to the proposed charge. The proposed charge
included an accomplice witness instruction, which stated as follows: “A conviction
cannot be had upon the testimony of an accomplice unless corroborated by other
evidence tending to connect the defendant with the offense committed, and the
corroboration is not sufficient if it merely shows the commission of the offense.”
ISSUE ONE
In his first issue, Harris argues that the evidence is insufficient to support his
conviction because “there is no evidence to corroborate” the testimony of Brooks,
Corbin, and Collins. The State asserts that Brooks, Corbin, and Collins were not
accomplices to the murder as a matter of law and argues that the non-accomplice
evidence was sufficient for rational jurors to have found that it tended to connect
Harris to the murder.
When reviewing the legal sufficiency of the evidence, we review all the
evidence in the light most favorable to the verdict and determine whether any
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rational trier of fact could find the essential elements of the offense beyond a
reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is the
ultimate authority on the credibility of witnesses and the weight to be given their
testimony. Brooks v. State, 323 S.W.3d 893, 894, 902 (Tex. Crim. App. 2010);
Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981). We
give deference to the jury’s responsibility to resolve conflicts in the 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).
Article 38.14 of the Texas Code of Criminal Procedure provides that a
defendant cannot be convicted of an offense upon the testimony of an accomplice
without other corroborating evidence tending to connect the defendant to the offense.
Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). When reviewing the sufficiency
of non-accomplice evidence under article 38.14, we determine whether the
inculpatory evidence tends to connect the defendant to the commission of the
offense. Smith v. State, 332 S.W.3d 425, 442 (Tex. Crim. App. 2011). “The direct or
circumstantial non-accomplice evidence is sufficient corroboration if it shows that
rational jurors could have found that it sufficiently tended to connect the accused to
the offense.” Id.; see also Simmons v. State, 282 S.W.3d 504, 508 (Tex. Crim. App.
12
2009). No particular quantity of corroborating evidence is required. Malone v. State,
253 S.W.3d 253, 257 (Tex. Crim. App. 2008).
“‘Tendency to connect’ rather than rational sufficiency is the standard[;] the
corroborating evidence need not be sufficient by itself to establish guilt.” Solomon
v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001). Non-accomplice evidence
need not directly link the defendant to the commission of the crime. See id. A
defendant’s presence at the scene of a crime, coupled with other suspicious
circumstances, can be sufficient to tend to connect the defendant to the commission
of the crime. Id. at 361-62. When there are conflicting views of the evidence, we
defer to the fact finder’s resolution of the evidence. Smith, 332 S.W.3d at 442;
Simmons, 282 S.W.3d at 508.
Assuming without deciding that Brooks, Corbin, and Collins were accomplice
witnesses, we review the entire record to determine whether the non-accomplice
inculpatory evidence tends to connect Harris to the commission of the murder. See
Smith, 332 S.W.3d at 442; Solomon, 49 S.W.3d at 361. The jury heard evidence that
a shirt found near the garage door of the victim’s home contained Harris’s DNA. In
addition, the jury heard Hernandez testify that the ammunition rounds she recovered
from the scene were pistol rounds. We conclude that the non-accomplice evidence
corroborated the accomplice testimony, and the non-accomplice testimony tends to
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connect Harris to the offense. See Smith, 332 S.W.3d at 442; Simmons, 282 S.W.3d
at 508; Solomon, 49 S.W.3d at 361-62; see generally Tex. Code Crim. Proc. Ann.
art. 38.14. Viewing all the evidence in the light most favorable to the verdict, we
conclude that a rational jury could have found the essential elements of the offense
beyond a reasonable doubt. See Jackson, 443 U.S. at 319. Accordingly, we overrule
issue one.
ISSUE TWO
In his second issue, Harris contends that his right to a fair trial was abrogated
by the trial court’s failure to properly submit an accomplice witness instruction that
applied the law to the facts, as required by article 38.14 of the Texas Code of
Criminal Procedure. See Tex. Code Crim. Proc. Ann. art. 38.14. As we did in our
analysis of issue one, we will assume without deciding that Brooks, Collins, and
Corbin were accomplice witnesses.
When reviewing alleged charge error, we determine whether error existed in
the charge and, if so, whether sufficient harm resulted from the error to compel
reversal. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If a defendant
does not object to the alleged charge error at trial, we may reverse the judgment only
if the error is so egregious that the defendant did not receive a fair and impartial trial.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); see
14
also Herron v. State, 86 S.W.3d 621, 632 (Tex. Crim. App. 2002). In assessing the
degree of harm, we must consider the entire jury charge, the state of the evidence,
the argument of counsel, and any other relevant information revealed by the record.
Almanza; 686 S.W.2d at 171. We must examine the charge in its entirety rather than
as a series of isolated statements. Holley v. State, 766 S.W.2d 254, 256 (Tex. Crim.
App. 1989); Iniguez v. State, 835 S.W.2d 167, 170 (Tex. App.—Houston [1st Dist.]
1992, pet. ref’d). “Egregious harm is a difficult standard to prove and such a
determination must be done on a case-by-case basis.” Hutch v. State, 922 S.W.2d
166, 171 (Tex. Crim. App. 1996).
A trial court’s charge must set forth “the law applicable to the case[.]” Tex.
Code Crim. Proc. Ann. art. 36.14 (West 2007). In addition to setting forth the
applicable law, the trial judge must apply the law to the facts presented. Gray v.
State, 152 S.W.3d 125, 127 (Tex. Crim. App. 2004). A jury charge which fails to
apply the law to the facts adduced at trial is erroneous. Id. at 128. It is not sufficient
for the jury to receive an abstract instruction on the law because an abstract charge
does not inform the jury of what facts would permit it to consider the contested
evidence. Hutch, 922 S.W.2d at 172-73.
As discussed above, defense counsel did not object to the proposed charge,
which did not include an application paragraph explaining the accomplice witness
15
instruction. Therefore, Harris must demonstrate that the trial court’s omission
egregiously harmed him. See Almanza, 686 S.W.2d at 171. Harris argues that
Mendez v. State, 545 S.W.3d 548 (Tex. Crim. App. 2018), supports his argument. In
Mendez, the Court of Criminal Appeals held that a trial court errs when it sua sponte
gives a defensive jury instruction but fails to apply it to a lesser-included offense.
Mendez, 545 S.W.3d at 549-50. Additionally, the Mendez court held that even if the
defendant fails to object to the error, “the resulting claim of jury-charge error is not
necessarily forfeited on appeal.” Id. at 552. However, the Court of Criminal Appeals
further held that its opinion only affects “which of Almanza’s dual standards of
review is to apply.” Id. If the defendant did not object, then reversal is warranted
only upon a showing of “‘egregious harm’ such that the defendant was deprived of
‘a fair and impartial trial.’” Id.
As we determined in our analysis of Harris’s first issue, assuming without
deciding that Brooks, Collins, and Corbin were accomplice witnesses and that the
trial court therefore erred by giving an incomplete accomplice witness instruction,
we conclude that Harris has not demonstrated egregious harm. As explained in our
analysis of issue one, we conclude that the non-accomplice evidence corroborated
the accomplice testimony, and the non-accomplice testimony tends to connect Harris
to the offense. See Smith, 332 S.W.3d at 442; Simmons, 282 S.W.3d at 508; Solomon,
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49 S.W.3d at 361-62; see also generally Tex. Code Crim. Proc. Ann. art. 38.14. We
therefore hold that the trial court’s failure to give a correct accomplice-witness
instruction did not egregiously harm Harris. See Mendez, 545 S.W.3d at 549-52;
Almanza, 686 S.W.2d at 171; see also Smith, 332 S.W.3d at 442; Simmons, 282
S.W.3d at 508; Solomon, 49 S.W.3d at 361-62; see also generally Tex. Code Crim.
Proc. Ann. art. 38.14. Accordingly, we overrule issue two.
ISSUE THREE
In issue three, Harris asserts that the trial court erred by overruling his
objection to the video that showed him in possession of a silver handgun six days
before the murder. According to Harris, the video constituted an extraneous act
under Rule 404(b) of the Texas Rules of Evidence and, therefore, should have been
excluded from evidence. See Tex. R. Evid. 404(b). Harris does not explain how the
video constitutes an extraneous act or offense. However, for purposes of our
analysis, we will assume, without deciding, that it does.
We review a trial court’s admission of evidence of extraneous acts under an
abuse of discretion standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003); Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on
reh’g). We must uphold the trial court’s ruling if it is within the zone of reasonable
disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). Rule
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404(b) of the Texas Rules of Evidence provides that evidence of a crime, wrong, or
other act is not admissible to prove a person’s character to show that the person acted
in accordance with the character on a particular occasion, but it may be admissible
for another purpose, “such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. . . .” Tex. R. Evid.
404(b). The list of enumerated purposes for which an extraneous offense may be
admissible under Rule 404(b) is neither exclusive nor exhaustive. Montgomery, 810
S.W.2d at 388. Evidence of extraneous acts may be admissible if it has relevance
apart from its tendency to prove a person’s character to show that he acted in
conformity therewith. Id. at 387. However, the fact that evidence of extraneous acts
is introduced for a purpose other than character conformity does not, standing alone,
make the evidence admissible. See Webb v. State, 36 S.W.3d 164, 180 (Tex. App.—
Houston [14th Dist.] 2000, pet. ref’d). Proferred evidence must also be relevant to a
fact of consequence in the case. Id. Evidence is relevant if it tends to make the
existence of any fact of consequence more probable or less probable than it would
be without the evidence. Tex. R. Evid. 401.
Rule 403 of the Texas Rules of Evidence provides: “The court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the
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jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403.
“Rule 403 favors admissibility of relevant evidence, and the presumption is that
relevant evidence will be more probative than prejudicial.” Montgomery, 801
S.W.2d at 389. Once a trial court determines that evidence of extraneous acts is
admissible under Rule 404(b), the trial court must, upon proper objection by the
opponent of the evidence, weigh the probative value of the evidence against its
potential for unfair prejudice. Id.; see Tex. R. Evid. 403.
[A] Rule 403[] analysis must balance (1) the inherent probative force
of the proferred item of evidence along with (2) the proponent’s need
for that evidence against (3) any tendency of the evidence to suggest
decision on an improper basis, (4) any tendency of the evidence to
confuse or distract the jury from the main issues, (5) any tendency of
the evidence to be given undue weight by a jury that has not been
equipped to evaluate the probative force of the evidence, and (6) the
likelihood that presentation of the evidence will consume an inordinate
amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see also
Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). However, if the only
value of evidence of extraneous acts is to show character conformity, the balancing
test required by Rule 403 is obviated because the “rulemakers hav[e] deemed that
the probativeness of such evidence is so slight as to be ‘substantially outweighed’
by the danger of unfair prejudice as a matter of law.” Montgomery, 810 S.W.2d at
387 (quoting United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978)).
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As discussed above, when defense counsel objected to the admission of the
video under Rule 404(b), the trial judge ruled that the evidence was admissible under
Rule 404, was relevant as “direct evidence toward the commission of the elements
of the offense,” and its probative value was not substantially outweighed by the
danger of unfair prejudice, confusion of the issues, misleading the jury, “or other
considerations under Rule 403 and is admissible.” The indictment alleged that Harris
caused the victim’s death by shooting him with a firearm. As discussed above,
Brooks and Collins both testified that they heard gunfire while Harris was in the
victim’s garage, and that Harris had a small silver or chrome gun in his hand
afterward. Moreover, both Brooks and Collins testified that the gun they saw in
Harris’s hand on the night of the murder appeared to be the same gun shown in the
video. Hernandez testified that the ammunition rounds recovered at the scene were
pistol rounds.
We conclude that the video was relevant to show that Harris had access to a
gun that matched the witnesses’ description of the murder weapon and comported
with Hernandez’s description of the ammunition recovered from the scene. See Tex.
R. Evid. 404(b). We further conclude that the trial court appropriately performed the
balancing test required by Rule 403. See Tex. R. Evid. 403; Gigliobianco, 210
S.W.3d at 641-42. The trial court did not err by determining that the evidence was
20
relevant beyond its tendency to show character conformity; did not tend to suggest
making a decision on an improper basis or confuse or distract the jury; did not
consume an inordinate amount of time; and was not cumulative. See Gigliobianco,
210 S.W.3d at 641-42. Accordingly, we overrule issue three.
ISSUE FOUR
In issue four, Harris argues that the trial judge erred by overruling his
objection to the State’s cross-examination of Harris’s mother, Tiffany Yeates.
Specifically, Harris complains of the State attempting to challenge Yeates’s
testimony that Harris was at his girlfriend’s house in Orange, Texas, on April 25th
and 26th, and, therefore, could not have committed the murder in Beaumont.
According to Harris, when Yeates testified that she always knew where Harris was,
“[t]he State attempted to establish that she did not know where he was suggesting
that he was at some apartments near Lamar University on April 14 and April 16 and
was videoed with a gun on April 20.” Harris contends that the State’s question
“suggested that [Harris] committed . . . extraneous acts of misconduct[,] and the
State asked an improper question.” Harris argues that “the prosecutor intended to
subvert the Appellant’s right to due process and fair trial” by suggesting that Harris
might have committed crimes on other dates.
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Yeates testified that Harris resides with her. When asked about April 25, 26,
27, and 28 of 2016, Yeates testified, “That time of the year is when for a fact I know
[Harris] was at his girlfriend’s house.” According to Yeates, Harris’s girlfriend
resides in Orange, Texas, and Harris “stayed a few nights over there.” Yeates
explained, “I know he left Sunday night. He would go to her house on the weekends
for sure. Every other weekend he would go out there and spend the weekend with
her.” Yeates testified that she did not immediately recall that Harris was in Orange
on those dates, but Harris’s girlfriend brought it to her attention by showing her a
picture that had the date on it. Yeates testified that every time Harris would go to
Orange, she always called his girlfriend’s mother “to make sure he’s actually there,
that he arrived and made it safe because I wanted to make sure because [of] the
traffic and all that.” /
During cross-examination, Yeates testified that Harris was at his girlfriend’s
house on the night of April 26, 2016, and that Harris had never owned a gun or had
one in her house or his car. When shown the video of Harris, Yeates testified, “It
looks like a gun.” Yeates agreed that Harris was always at home with her or with an
adult. The prosecutor later asked Yeates, “Were you aware that [Harris] was at some
apartments around Lamar around April 14th and April 16th?” Defense counsel
objected, and the parties approached the bench. During the bench conference,
22
defense counsel stated that he objected to “relevance” and asserted that the
prosecutor was “trying to open up his own door.” The trial judge overruled the
objection, and Yeates then testified that she was not aware that Harris was around
some apartments at Lamar University on April 14th and 16th.
As discussed above, Harris argues that the State’s question during its cross-
examination of Yeates “suggested that [Harris] committed . . . extraneous acts of
misconduct[,] and the State asked an improper question.” We review the trial court’s
admission of evidence for abuse of discretion. Weatherred v. State, 15 S.W.3d 540,
542 (Tex. Crim. App. 2000). The test for abuse of discretion is whether the trial court
acted without reference to any guiding rules or principles. Hernandez v. State, 53
S.W.3d 742, 750 (Tex. App.—Houston [1st Dist.] 2001, pet. ref’d). To preserve an
appellate issue, the objection at trial must comport with the objection on appeal.
Ramirez v. State, 815 S.W.2d 636, 645 (Tex. Crim. App. 1991).
At trial, defense counsel objected only to relevance. Therefore, Harris’s
appellate complaint that the State’s question constituted an improper attempt to
introduce an extraneous offense was not preserved for review. See id. To the extent
that Harris’s issue complains that the State’s question was not relevant, we will
address it. Yeates testified that Harris was always with her or another adult, and she
always called Harris’s girlfriend’s mother when Harris visited Orange. Yeates also
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testified that Harris was at his girlfriend’s house in Orange on the date of the murder.
As discussed above, evidence is relevant if it tends to make the existence of any fact
of consequence more probable or less probable than it would be without the
evidence. Tex. R. Evid. 401. In this case, Yeates’s testimony during direct
examination that Harris was not in Beaumont on the night of the murder made the
issue of Yeates’s veracity and reliability regarding her knowledge of Harris’s
whereabouts relevant. See id. As Harris acknowledges in his brief, his “defense
depended on the credibility of his mother and girlfriend.” The prosecutor was
entitled to question Yeates regarding her testimony that Harris was in Orange on the
night of the murder. See id. Therefore, the trial judge did not err by overruling
Harris’s relevancy objection. In addition, the record does not support Harris’s
contention that the prosecutor engaged in misconduct designed to subvert his right
to due process and a fair trial, and Harris did not lodge an objection on that basis at
trial. See Tex. R. App. 33.1(a). For all these reasons, we overrule issue four.
ISSUE FIVE
In his fifth issue, Harris argues that he was denied due process when the State
introduced evidence that he was in custody from the date of his arrest through trial.
During cross-examination of his girlfriend, Aaliyah Keller, the State elicited
testimony from Keller regarding a text message Harris sent to her on the day he was
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arrested. Keller testified that on that date, Harris sent her a message that stated, “I’m
fixing to go to prison[.]” The prosecutor also asked Keller whether she changed her
name on Facebook and whether she and Harris began calling each other husband and
wife on Facebook, and she stated that they did. The prosecutor then asked, “But still,
he’s locked up, right?” and “He’s in jail, right?” Keller responded affirmatively to
both questions, and defense counsel did not object.
As a prerequisite to raising a complaint on appeal, the record must show that
the complaint was made to the trial court by a timely objection that stated the grounds
of the objection with sufficient specificity to make the trial court aware of the
complaint. Tex. R. App. P. 33.1(a)(1)(A). We conclude that Harris failed to preserve
the issue for review. See id. However, even if Harris had preserved the issue, we
cannot agree that the testimony indicated that Harris was in custody until the time of
trial. At most, the testimony from Keller indicated that Harris was in custody when
she changed her Facebook page. See Pierce v. State, 234 S.W.3d 265, 268 (Tex.
App.—Waco 2007, pet. ref’d) (holding that trial court’s instruction cured any
prejudice caused by testimony revealing that the defendant was incarcerated); see
also generally Banks v. State, 643 S.W.2d 129, 133 (Tex. Crim. App. 1982) (holding
that the appellant’s right to the presumption of innocence was not violated by
deputies escorting him from the courtroom in the presence of prospective jurors).
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Finally, we note that prior to the complained-of exchange between the prosecutor
and Keller, defense counsel had elicited testimony from Yeates that Harris had been
arrested and jailed. See Nino v. State, 223 S.W.3d 749, 754 (Tex. App.—Houston
[14th Dist.] 2007, no pet.) (holding that error in admission of testimony was harmless
because similar testimony was admitted elsewhere). For all these reasons, we
overrule issue five. Having overruled each of Harris’s issues, we affirm the trial
court’s judgment.
AFFIRMED.
______________________________
STEVE McKEITHEN
Chief Justice
Submitted on September 27, 2018
Opinion Delivered January 23, 2019
Do Not Publish
Before McKeithen, C.J., Kreger and Horton, JJ.
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