AP-77,024
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 2/27/2015 8:39:17 PM
March 3, 2015 Accepted 3/3/2015 7:58:30 AM
ABEL ACOSTA
No. AP-77,024 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
SITTING AT AUSTIN, TEXAS
_________________________________________________
ALBERT LESLIE LOVE, Jr.,
APPELLANT
V.
THE STATE OF TEXAS
___________________________________________
AN APPEAL OF A CONVICTION FOR
CAPITAL MURDER
CAUSE NO. 2011-1511-C1
FROM THE 19TH JUDICIAL DISTRICT COURT OF
MCLENNAN COUNTY, TEXAS
____________________________________________
STATE'S BRIEF
____________________________________________
ABELINO "ABEL" REYNA STERLING HARMON
Criminal District Attorney Appellate Division Chief
McLennan County, Texas State Bar No. 09019700
219 North 6th Street, Suite 200
Waco, Texas 76701
[Tel.] (254) 757-5084
[Fax] (254) 757-5021
[Email]
sterling.harmon@co.mclennan.tx.us
i
Identity of Parties and Counsel
Appellant Albert Leslie Love, Jr.
Appellant’s Trial Attorneys Mr. Jon Evans
Mr. John Donahue
Appellant’s Attorney on Appeal Mr. Ariel Payan
1012 Rio Grande
Austin, Texas 78701
State’s Trial Attorneys Mr. Abelino ‘Abel’ Reyna,
Criminal District Attorney;
Mr. Gregory Davis
Mr. Michael Jarrett
Ms. Hilary LaBorde,
Assistant Criminal District
Attorneys
219 North 6th Street, Suite 200
Waco, Texas 76701
State’s Attorney on Appeal Abelino ‘Abel’ Reyna
Criminal District Attorney
Sterling Harmon
Appellate Division Chief
219 North 6th Street, Suite 200
Waco, Texas 76701
ii
Table of Contents
Table of Contents
Identity of Parties and Counsel............................................................................ ii
Table of Contents .................................................................................................. iii
TABLE OF AUTHORITIES ................................................................................... v
Issues Presented …………………………………………………………….. ix
Statement Regarding Oral Argument ……………………………………. x
Factual Overview ……………………………………………………………… 1
Point of Error 1 ……………………………………………………………… 9
Statement of Facts ……………………………………………………………9
Argument ………………………………………………………………… 12
Point of Error 2 ……………………………………………………………… 15
Statement of Facts ………………………………………………………. 15
Argument ……………………………………………………………… 17
Point of Error 3 ……………………………………………………………… 19
Statement of Facts ……………………………………………………….. 19
Argument ……………………………………………………………………23
Point of Error 4 ……………………………………………………………….. 25
Statement of Facts …………………………………………………………. 25
Argument …………………………………………………………………. 27
Point of Error 5 ………………………………………………………………. 29
iii
Statement of Facts ……………………………………………………… 29
Argument …………………………………………………………………. 31
Point of Error 6 …………………………………………………………. 33
Statement of Facts ……………………………………………………… 33
Argument ………………………………………………………………… 36
Point of Error 7, 8…………………………………………………………... 41
Statement of Facts ………………………………………………………….41
Argument ………………………………………………………………… 42
Point of Error 9 …………………………………………………………… 44
Statement of Facts ……………………………………………………… 44
Argument …………………………………………………………………. 44
Point of Error 10 …………………………………………………………… 46
Statement of Facts ……………………………………………………….. 46
Argument …………………………………………………………………. 46
Point of Error 11 …………………………………………………………….. 47
Statement of Facts ………………………………………………………. 47
Argument …………………………………………………………….….. 48
Prayer …………………………………………………………………..…… 49
Certificate of Compliance ....................................................................................50
Certificate of Service .............................................................................................50
iv
TABLE OF AUTHORITIES
U.S. Constitutional Provisions
U.S. Const. amend. VI …………………………………………………… 29, 32
U.S. Const. amend. XIV ……………………………………………………… 17
Federal Opinions
Batson v. Kentucky, 476 U.S. 79,
106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986) ………. vii, 15-16, 17, 18, 19, 47, 48
Crawford v. Washington, 541 U.S. 36,
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) ……………………… 28, 32, 39
Duren v. Missouri, 439 U.S. 357,
99 S. Ct. 664, 58 L. Ed. 2d 579 (1979) …………………………………48, 49
Riley v. California, ___ U.S. ___, 2014 WL 2864484 (2014) ……………….. 40
124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) …………………………28, 32, 39
Snyder v. Louisiana, 552 U.S. 472,
128 S.Ct. 1203, 170 L.Ed. 2d 175 (2009) ……………………………. 17, 18
United States v. Branch, 989 F. 2d 752 (5th Cir. 1993)…………………. 18, 19
United States v. Fernandez, 887 F. 2d 564 (5th Cir. 1989)…………………. 17
Texas State Opinions
Armendariz v. State, 123 S.W. 3d 401 (Tex. Crim. App. 2007),
cert. denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed. 2d 469 (2004) ……… 38
Cardenas v. State, 325 S.W. 3d 179 (Tex. Crim. App. 2010) ……………….. 12
Chapman v. State, 115 S.W. 3d 1 (Tex. Crim. App. 2003) …………….… 42, 43
Cumbo v. State, 760 S.W. 2d 251 (Tex. Crim. App. 1988) …………………… 13
De La Paz v. State, 279 S.W. 3d 336 (Tex. Crim. App. 2009) ………… 27, 28
Emery v. State, 881 S.W. 2d 702 (Tex. Crim. App. 1994) …………………… 43
Feldman v. State, 71 S.W. 3d 738 (Tex. Crim. App. 2002) ……………. 12, 13
Garcia v. State, 126 S.W. 3d 921 (Tex. Crim. App. 2004) …………………… 40
Gardner v. State, 306 S.W. 3d 274 (Tex. Crim. App. 2009) ……………….… 13
v
Gigliobianco v. State, 210 S.W. 3d 637 (Tex. Crim. App. 2006) …………… 27
Guzman v. State, 85 S.W. 3d 242 (Tex. Crim. App. 2002) ……………..… 17
Johnson v. State, 967 S.W. 2d 410 (Tex. Crim. App. 1998) …………………. 41
Johnson v. State, 145 S.W. 3d 215 (Tex. Crim. App. 2004) ………….. 23, 24, 25
Jones v. State, 982 S.W. 2d 386, 390 (Tex. Crim. App. 1998)
cert. denied, 528 U.S. 985, 145 L. Ed. 2d 362, 120 S. Ct. 444 (1999) …… 13
Keeton v. State, 749 S.W. 2d 861 (Tex. Crim. App. 1988) ………………..… 19
Martinez v. State, 327 S.W. 3d 727 (Tex. Crim. App. 2010) ……………….. 27
McCarthy v. State, 257 S.W. 3d 238 (Tex. Crim. App. 2008) …………….… 31
Mitchell v. State, 931 S.W. 2d 950 (Tex. Crim. App. 1996) ………………… 43
Montgomery v. State, 810 S.W. 2d 372 (Tex. Crim. App. 1991)
(opinion on rehearing) …………………………….……… 24, 25, 27, 33, 45
Moses v. State, 105 S.W. 3d 622 (Tex. Crim. App. 2003)…………..………… 24
Padron v. State, 988 S.W. 2d 344 (Tex. App. – Houston [1st Dist.] 1999)… 43
Rachal v. State, 917 S.W. 2d 799 (Tex. Crim. App. 1996) …………………... 13
Ransom v. State, 920 S.W. 2d 288 (Tex. Crim. App. 1996) ……………….. 24
Rousseau v. State, 824 S.W. 2d 579 (Tex. Crim. App. 1992)………………..…18
Russeau v. State, 171 S.W.3d 871 (Tex. Crim. App. 2005) ………………..… 13
Sauceda v. State, 129 S.W. 3d 116 (Tex. Crim. App. 2004) ………………… 24
Swearingen v. State, 101 S.W. 3d 89 (Tex. Crim. App. 2003) ………… 12, 13
State v. Garcia-Cantu, 253 S.W. 3d 236 (Tex. Crim. App. 2008)…………… 38
State v. Kelly, 204 S.W. 3d 808 (Tex. Crim. App. 2006) ……………… 37, 38
State v. Stevens, 235 S.W. 3d 736 (Tex. Crim. App. 2007)………………… 38
Tienda v. State, 358 S.W. 3d 633 (Tex. Crim. App. 2012)…………………… 45
Tong v. State, 25 S.W. 3d 707 (Tex. Crim. App. 2000) ……………………… 38
Wall v. State, 184 S.W. 3d 730 (Tex. Crim. App. 2006) …………….…… 32, 33
Wiede v. State, 214 S.W. 3d 17 (Tex. Crim. App. 2007) …………………… 37
vi
Wilson v. State, 71 S.W. 3d 346 (Tex. Crim. App. 2002) …………………… 36
Young v. State, 283 S.W. 3d 854 (Tex. Crim. App. 2009)
cert. denied 558 U.S. 1093, 130 S.Ct. 1015, 175 L.Ed. 2d 622 (2009)…17, 18
Zuliani v. State, 97 S.W. 3d 589 (Tex. Crim. App. 2003) …………………… 31
Federal Statutes and Codes
18 USCA §2703(c)(d)…………………………………………………………. 40
18 USCA §2703(d)…………………………………………………………….. 40
Texas Statutes and Codes
Tex. Code Crim. Proc. Art. 35.16(b)(3)……………………………………… 12
Tex. Code Crim. Proc. Art. 35.261 …………………………………………… 17
Tex. Code Crim. Proc. Art. 35.261(a)………………………………………… 18
Tex. Code Crim. Proc. Art. 37.071 §2(a)(1)……………………………………. 42
Tex. Code Crim. Proc. Art. 38.22 ……………………………………………… 42
Rules
Tex. R. App. P. 9.4(e) ………………………………………………………….. 50
Tex. R. App. P. 9.4(i) ............................................................................................. 50
Tex. R. App. P. 9.4(i)(1) ........................................................................................ 50
Tex. R. App. P. 33.1 ............................................................................................... 36
Tex. R. App. P. 38.1(e) ........................................................................................ viii
Tex. R. App. P. 38.1(h) .......................................................................................... 38
Tex. R. App. P. 44.2(b) .......................................................................................... 40
Tex. R. App. P. 71.3 ............................................................................................. viii
Tex. R. Evid. 104(a) ………………………………………………………… 44
Tex. R. Evid. 401 ……………………………………………………….. 23, 38, 44
Tex. R. Evid. 402 ……………………………………………………………….. 44
vii
Tex. R. Evid. 403 …………………………………………………… 23, 24, 25, 27
Tex. R. Evid. 404(b) …………………………………………………….. 23, 24, 27
Tex. R. Evid. 801(d) …………………………………………………………… 39
Tex. R. Evid. 803(2) ……………………………………………………….. 31, 39
Tex. R. Evid. 901(a) ………………………………………………………… 44
viii
Issues Presented
Appellant’s Issues Presented:
1. Did the trial court err in improperly granting two (sic) of the State’s
challenges for cause?
2. Did the trial court err in denying Appellant’s Batson challenge to the
State’s peremptory strike of an African-American venireperson?
3. Did the trial court err in allowing the admission of an extraneous bad
act?
4. Did the trial court err in allowing into evidence items seized in a
search of a co-defendant’s vehicle?
5. Did the trial court err in admitting into evidence a hearsay statement
of a co-defendant made prior to the commission of the offense and
not in furtherance of a conspiracy?
6. Did the trial court err in admitting into evidence cellular telephone
records in violation of Appellant’s federal and state constitutional
rights?
7. Did the trial court err in admitting into evidence a compelled
statement of Appellant?
8. Were Appellant’s state and federal due process rights violated
because the trial court allowed the jury to consider an admission by
Appellant, without corroboration?
9. Did the trial court err by admitting letters and drawings made by
Appellant?
10.Did the trial court err in admitting a music video into evidence?
11.Did the trial court err in refusing to ensure that the venire
represented a fair racial proportion reflective of the county in which
the offense was committed?
ix
Statement Regarding Oral Argument
Pursuant to Tex. R. App. Pro. 38.1(e) and 71.3, the State does not
believe that the issues presented in this appeal are of such a nature that
the Court’s decisional process would be aided by oral argument, and
oral argument is not requested.
x
FACTUAL OVERVIEW
On March 28, 2011, Tyus Sneed and Keenan Hubert were shot to death
while sitting in the backseat of a car at the Lakewood Villas Apartments in
Waco, McLennan County, Texas. (RR XXXIII – 74-89). Each of the victims
was shot eight times. (RR XXXV – 15, 32).
Emuel Bowers, III had been murdered on April 8, 2010. (RR XXXIII –
9, 13). Associates of Bowers concluded that Keenan Hubert was
responsible for Bowers’ death. (RR XXXIII – 32-33). These associates
included brothers Rickey Cummings and D’Arvis Cummings, and
Appellant. (RR XXXII – 84-86). Appellant and the Cummings brothers had
grown up with Bowers, who was also known by the nicknames, “T-Bucks,”
and “Man-Man.” (RR XXXII – 161-162). The parties were also close to
Bowers’ mother Shelia Bowers, his uncle Freddie Hilliard, and his wife
Shianese Iglehart. (RR XXXII 158-160, 173-174).
On the afternoon of April 8, 2010, Bowers was living with his wife and
child in Waco. (RR XXXII – 162). Around 6:00 p.m., Bowers drove to Hood
Street Park to meet someone for a drug transaction. (RR XXXII – 166).
While Bowers sat in his parked car, someone shot and killed him. (RR
XXXIII – 13).
A bystander, Theresa Salazar, seeing Bowers, called Rickey Cummings
and told him he needed to come to the park. (RR XXXII – 96). Cummings
went to the park, arriving before the police. (RR XXXII – 119). On arrival,
Cummings took possession of Bowers’ phone, and began calling members
1
of the Bowers family. (RR XXXII – 169). He also checked through Bowers’
phone to see who Bowers has been in recent contact with. (RR XXXII –
119).
Paul Hall, a drug associate of Bowers’, called Bowers’ phone at this
time, and Cummings answered. (RR XXXII – 119). Hall was supposed to
meet with Bowers for a drug deal, but Bowers never showed. (RR XXXII –
115-116). Hall had called Bowers’ phone to find out what had happened.
(RR XXXII – 119).
After the brief conversation between Hall and Cummings, Cummings
went to Hall’s apartment with a group of men, which included Appellant
and D’Arvis Cummings. (RR XXXII – 122). Hall was able to persuade the
group that he had nothing to do with Bowers’ murder, but the
confrontation so frightened him that he quit his job and obtained a
handgun for personal protection. (RR XXXII – 125-127).
At Bowers’ funeral, his associates, including Appellant and the
Cummings brothers, wore red military-style shirts with the word
“Combat” emblazoned over the heart. (RR XXXII – 173-175). The initial
investigation into Bowers’ murder turned up no eyewitnesses, no murder
weapon, and no forensic evidence. (RR XXXIII – 17-18). After Hall was
quickly eliminated as a suspect, the police investigation stalled. (RR XXXIII
– 26). The lead investigator on the Bowers case was Waco Police Detective
Mike Alston. (RR XXXIII – 7-71). Bowers’ family, particularly Shelia
Bowers and Freddie Hilliard, became increasingly frustrated with the
2
police. (RR XXXIII – 28). The family began their own investigation,
interviewing and recording a number of people, and in fact interfering
with and possibly tainting the police investigation. (RR XXXIII – 28).
During this time, Bowers’ wife, Shianese Iglehart, had a run-in with
Keenan Hubert. (RR XXXIII – 31). Bowers’ family produced a list of who
they believed was involved, including Keenan Hubert, which they
provided to Detective Alston. (RR XXXIII – 32-33). Alston’s investigation
could find no evidence that Hubert was actually involved with Bowers’
killing. (RR XXXIII – 33). As time passed, tensions began to rise in the
community. (RR XXXII – 100). About a month after Bowers was
murdered, there was a confrontation between Rickey Cummings and
Hubert at a park in Waco. (RR XXXIII – 220-225). Meanwhile, in early
March, 2011, Appellant had attempted to make a straw purchase of an AK-
47 rifle with a folding stock, at a gun store in Waco. (RR XXXVII – 84, 89,
107).
At about 3:00 p.m. on the date of the Sneed and Hubert murders,
Chantal Hart and another woman came in contact with Rickey Cummings,
and observed an AK-47 with a folding stock in the back seat of Cummings’
car. (RR XXXVII – 119-122). Their picture was taken with the gun. (RR
XXXVII – 123). Appellant’s phone records showed that later that afternoon
he was driving around Waco with Rickey and D’Arvis Cummings,
eventually going to the Lakewood Villas Apartments that evening. (RR
XXXVI – 82-85).
3
Keenan Hubert also went to the apartment complex that evening, to
visit a friend, Marion Bible. (RR XXXIII – 169-170). Hubert and Bible also
met up with a common friend, Deontrae Majors. (RR XXXIII – 169-170).
After these three men met up, they had a heated encounter with Rickey
Cummings. (RR XXXIII – 233-234). After this event, Hubert, Bible and
Majors sat in Majors’ car. (RR XXXIII – 236). They were shortly joined by
another common friend, Tyus Sneed. (RR XXXIII – 237). The four sat in
the car, watching videos and smoking marihuana. (RR XXXIII – 236-237).
After the run-in with Hubert, Bible and Majors, Cummings nearly got
hit by a car in the complex parking lot. (RR XXXV – 96-97). Cummings
threatened to shoot the driver. (RR XXXV – 97). Darnell Atkins tried to
calm Cummings down, inviting him to his apartment to smoke marihuana.
(RR XXXV – 98-99). During this visit, Cummings got a phone call from
Appellant and immediately left Atkins’ apartment. (RR XXXV – 99-100).
A short time later Tyus Sneed’s father, Robert Sneed, encountered
Rickey Cummings. (RR XXXIII – 194). Robert Sneed knew Rickey
Cummings personally and the two exchanged a brief greeting. (RR XXXIII
– 195). Cummings was accompanied by two other men. (RR XXXIII – 197).
Briefly thereafter, Cherrelle Dye saw a group of men in the area, one
carrying a long gun. (RR XXXV – 118).
About thirty to forty-five minutes later, a number of people at the
apartment complex heard heavy, sustained gunfire coming from the
parking lot area. (RR XXXIII – 239-240). At approximately 11:20 p.m., four
4
men rushed Majors’ car from behind, shooting at the car and its occupants
with a .45-caliber pistol, a .38-caliber revolver, a .40-caliber pistol, and an
AK-47-style rifle. (RR XXXIV – 89). The back window was shot out
immediately. (RR XXXIII – 239). Majors and Bible were in the front seat,
and though wounded, were able to escape to Bible’s apartment. (RR
XXXIII – 241-243). Sneed and Hubert, sitting in the back seat, were both
shot eight times. (RR XXXV – 15, 32). The vehicle itself was riddled with
bullet holes, and the windows were blown out. (RR XXXIII – 87). None of
the occupants of the car had been armed. (RR XXXIII – 238-239).
Two of the attackers then fled in the direction they came from. (RR
XXXV – 159-163). One of these attackers, Appellant, was described by a
witness as being heavier-built and carrying an AK-47-type rifle. (RR XXXV
– 162). The third assailant, Rickey Cummings, chased Bible and Majors
into Bible’s apartment. (RR XXXV – 196-200). Nikoll Henry, who also
lived at the apartment, came face-to-face with Cummings at the front door
of the apartment. (RR XXXV – 200). Cummings was carrying a .45-caliber
pistol, which had jammed. (RR XXXV – 201). Cummings was trying to
clear the weapon and wound up ejecting a round which was later found
inside the apartment. (RR XXXIV – 175). Cummings then left the scene.
(RR XXXV – 205).
A few minutes after the shooting stopped, Brittany Snell, another of
the apartment complex residents, saw Appellant and Rickey Cummings.
(RR XXXVI – 205). They went to Snell’s apartment and Cummings asked to
5
borrow Snell’s phone. (RR XXXVI – 205). She let the two into her
apartment, not questioning why Cummings didn’t go to his grandmother’s
apartment to use her phone. (RR XXXVI – 209). Before making a call,
Cummings went into the bathroom, apparently washing his hands. (RR
XXXVI – 216). Cummings then tried to call his brother, D’Arvis. (RR
XXXVI – 212). However, Rickey could not speak with D’Arvis at this time
as D’Arvis had just been stopped by the police. (RR XXXIV – 195).
Cummings and Appellant then left the apartment complex. (RR XXXVI –
213).
For the next three hours, Appellant had his phone turned off. (RR
XXXVI – 99). His next call was to Bowers’ mother, then a text to Shelia
Bowers saying, “We love you.” (RR XXXVI – 107, 118). Then Appellant
texted to Rickey Cummings, “T-Bucks!” Bowers’ nickname. (RR
XXXVI119). Later Appellant texted his wife, concluding the text stream by
telling her to delete his messages. (RR XXXVI – 121). The day after the
murders, Appellant texted his wife to “Take them bullets out of the house.”
(RR XXXVII – 74).
After the shootings, Appellant went into hiding in McGregor, Texas.
(RR XXXVI – 145). During this time, Appellant had text conversations with
his uncle in Killeen, Darryl Haynes, regarding acquisition and disposal of
guns. (RR XXXVI – 145). Appellant specifically asked Haynes to get him a
.40-caliber pistol. (RR XXXVI – 133). In discussing disposal of the murder
6
weapons, Appellant advised Haynes that he had already taken care of the
matter. (RR XXXVI – 145).
On April 1, 2011, Rickey Cummings was arrested. (RR XXXIV – 281).
During the arrest of Cummings, it was discovered that he had a .40-caliber
pistol on his person. (XXXIV – 284). Also, .45-caliber and .38-caliber
ammunition was found in Cummings’ vehicle. (RR XXXIV – 287).
On April 5, 2011, Appellant was also arrested. (RR XXXIV – 301).
Among the text messages Appellant wrote after the killings and prior to his
arrest was a statement that he “did it ugly and messy. Man-Man had a
blast when he seen that.” (RR XXXVI – 159). Also during this time,
Appellant got a tattoo which featured Bowers’ likeness along with the
words, “RIP Man-Man,” and the image of an AK-47 rifle. (RR XXXV – 262-
263).
The State obtained and presented in evidence cell phone records
showing Appellant’s approximate locations, calls sent and received, and
texts sent and received during the times relevant to the case. (RR XXXVI –
36-175).
The jury returned its verdict of guilt. (RR XXXVIII – 53).
At punishment, evidence was presented that Appellant had attended
Prairie View A&M, where he was involved in drinking, marihuana and
partying. He also admitted to being involved in robberies and shootings
during this time. (RR XL – 83-87).
7
While at college, Appellant developed a brain infection which required
surgeries. (RR XLII – 42-70). Evidence was presented indicating that
Appellant had cognitive deficits as a result of the medical issues. (RR XLII
– 85-103). In rebuttal, the State presented letters and drawings Appellant
had made, indicating retention of mental faculties and fine motor skills.
(RR XLII – 103-147).
Evidence was also presented regarding Appellant’s gang membership,
including the wearing of red clothing, gang-related tattoos, and appearing
in a music video which included gang references. (RR XL – 158; XLI – 70-
75).
Upon the jury’s findings on the special issues, Appellant was
sentenced to death. (RR XLII – 209).
8
POINT OF ERROR 1: Did the trial court err in improperly granting two
(sic) of the State’s challenges for cause?
Statement of Facts
The questioning of venireperson Deanna Shanklin regarding the
State’s burden of proof transpired, in relevant part, as follows:
Q. (by the State) … I think in one of your answers you said that you
strongly agreed that the State should be required to prove a
defendant’s guilt beyond all doubt, even though the law only
requires that it be proved beyond a reasonable doubt.
A. If it’s this severe, a death, you know, definitely. … (RR XX – 53)
Q. … So that I understand, in order for you to ever find this man guilty
in this particular case, you’re going to have to be – the case is going to
have to be proven to the point where you are 100 percent certain of
his guilt before you’re ever going to find him guilty of capital murder
and move him toward a death penalty. Right?
A. Yes, sir.
Q. And you sound pretty certain about that.
A. Yes, sir. … (RR XX – 54)
Q. … Would you be able to make that determination? Do you feel that
you would ever have enough evidence where you would be 100
percent certain about how to answer that question either yes or no,
because some people have said, “I just don’t think that that question
is capable of being answered to that degree of certainty that is
required by law” ?
A. I think it boils down to the evidence and what is found and how I feel
in my mind. If there is enough evidence, anybody can make a certain
decision. … (RR XX – 64)
Q. … I want to come back to one last thing for you and just make sure
that I understand, and that is, one of the things that you’ve told me is
this: Any decision that you make in this case, whether it be this
man’s guilt, whether it be the answers to Question 1 or Number 2
9
where we have the burden of proof, before you’re ever going to
answer those questions and side with the State of Texas, you’re
going to have to be 100 percent certain before you do that, aren’t
you.
A. Yes, sir. … (RR XX – 76)
Q. (by Appellant) … You kind of believe – do not believe that the death
penalty should be imposed, but as long as the law provides for it, you
could assess it under the proper circumstances. Is that basically what
you’re telling us?
A. Yes, sir. If I can believe in my heart and my soul beyond a reasonable
doubt or 100 percent, then I could do that. … (RR XX – 84-85)
Q. (by the State) … You told me as plain as day several times that before
you ever find this man guilty of capital murder, you’re going to have
to be 100 percent certain –
A. Yes, sir.
Q. – of his guilt, aren’t you?
A. Yes, sir.
Q. There is no way – are you ever going to be able to find this man
guilty of capital murder if you have any doubt whatsoever of his
guilt?
A. No. … (RR XX – 92-93)
Q. (by Appellant) … I guess you’d want to be convinced beyond all
reasonable doubt?
A. Yes.
Q. You could follow the law?
A. Yes.
MR. DONAHUE: No further questions, Judge.
VENIREPERSON SHANKLIN: Beyond a reasonable doubt, I can
be 100 percent, yes.
THE COURT: Ma’am, for my benefit, I need to clarify. I need for
you to clarify something for me. You have said several times – and
you’re probably tired of saying it – that you want to be convinced
beyond all doubt, that you want to be 100 percent certain of any decision
you have to make in this case.
10
VENIREPERSON SHANKLIN: Yes, sir.
THE COURT: The State has the burden of proving this case beyond
a reasonable doubt.
VENIREPERSON SHANKLIN: Yes, sir.
THE COURT: 100 percent certainty is different than proof beyond a
reasonable doubt. They are two different things. They are not the same
thing.
VENIREPERSON SHANKLIN: I beg to differ.
THE COURT: No, ma’am.
VENIREPERSON SHANKLIN: I think that if they show me the
evidence –
THE COURT: You’re certainly free to believe anything you want to,
ma’am. I’m not arguing with you. I’m just telling you that the law says
they are two different things.
VENIREPERSON SHANKLIN: Okay. …
THE COURT: Okay. I just want to make sure you understand,
there is a distinction. 100 percent certainty is a higher standard than
proof beyond a reasonable doubt. It’s two different things under the
law.
VENIREPERSON SHANKLIN: Okay.
THE COURT: Do you understand that?
VENIREPERSON SHANKLIN: Yes, sir.
THE COURT: Okay. What standard are you going to apply in this
case regarding the State’s having the burden in this case? What level are
you going to require them to prove their case, 100 percent certainty or
proof beyond a reasonable doubt?
VENIREPERSON SHANKLIN: It’s going to have to be beyond a
reasonable doubt if I can’t be 100 percent certain, because I wasn’t at the
crime.
THE COURT: Do you understand the distinction?
VENIREPERSON SHANKLIN: Yes, sir. …
THE COURT: So what level of certainty would you require the
State to prove their case to?
11
VENIREPERSON SHANKLIN: Beyond a reasonable doubt. If I
have any doubt, then I’m not – I’m honest.
THE COURT: I know you are, ma’am. No one is questioning your
integrity or honesty, and we appreciate that.
VENIREPERSON SHANKLIN: I would never do anything if I had
a doubt that something else could have come in. I could not do that.
(RR XX – 94-97).
The court granted the State’s challenge for cause, explaining, “That’s
the reason I asked her those questions. Until her last comment to me about
if she has got any doubt at all, she cannot have a doubt, I would have – I
wouldn’t have granted the challenge, but based on what she said, the
totality of her comments, I’m going to grant the challenge.” (RR XX – 98).
Argument
A party may challenge a venireperson for cause whenever he or she
has a bias or prejudice against any phase of the law applicable to the case
upon which the party is entitled to rely. Cardenas v. State, 325 S.W. 3d 179,
184-185 (Tex. Crim. App. 2010). The test in such circumstances is whether
the bias or prejudice would prevent or substantially impair the
venireperson’s ability to fully follow the law as set out in the trial court’s
instructions and as required by the juror’s oath. Swearingen v. State, 101
S.W. 3d 89, 99 (Tex. Crim. App. 2003); Feldman v. State, 71 S.W. 3d 738, 744
(Tex. Crim. App. 2002). The law pertaining to the application of the proper
burden of proof is a law upon which the State is entitled to rely. Tex. Code
Crim. Proc. art. 35.16(b)(3). The State is entitled to jurors who will apply the
proper burden of proof. Cardenas at 184. Once a venireperson admits a
12
bias against a phase of the law upon which a party is entitled to rely, a
sufficient foundation has been laid to support a challenge for cause. Cumbo
v. State, 760 S.W. 2d 251, 255-256 (Tex. Crim. App. 1988). Before a
prospective juror can be challenged for cause, however, the law must be
explained to him and he must be asked whether he can follow that law
regardless of his personal views. Feldman at 744; Jones v. State, 982 S.W. 2d
386, 390 (Tex. Crim. App. 1998) cert. denied, 528 U.S. 985, 145 L. Ed. 2d 362,
120 S. Ct. 444 (1999).
Appellate review of a trial court’s decision to grant or deny a challenge
for cause is deferential to the trial court due to its superior position in
evaluating a venireperson’s demeanor and responses, as well as the context
and tone in which questions were asked and answered. See, Rachal v. State,
917 S.W. 2d 799, 810 (Tex. Crim. App. 1996). Likewise, when a
venireperson’s answers are vacillating, unclear, or even contradictory,
great deference is afforded to the trial court, because it has the better
opportunity to see and hear the venireperson. Swearingen at 99.
Accordingly, a trial court’s ruling on a challenge for cause will be reversed
only if a clear abuse of discretion is evident, which occurs when the
decision falls outside the zone of reasonable disagreement. Gardner v. State,
306 S.W. 3d 274, 296 (Tex. Crim. App. 2009); Russeau v. State, 171 S.W. 3d
871, 879 (Tex. Crim. App. 2005). The appellate court reviews the entire voir
dire record to determine whether there is sufficient evidence to support the
ruling. Feldman at 744.
13
In the case at bar, Venireperson Shanklin repeatedly told the State’s
attorney that she would have to be convinced “100 percent.” When she
was asked by Appellant if she could assess punishment “as the law
provides for it, you could assess it under the proper circumstances,“
Shanklin replied that, “If I can believe in my heart and my soul beyond a
reasonable doubt or 100 percent, then I could do that.” The court then
explained to Shanklin that “100 percent certainty is different than proof
beyond a reasonable doubt.” Shanklin begged to differ. The court
continued to explain the law to Ms. Shanklin, then asked her what
standard she was going to apply in the case, “100 percent certainty or proof
beyond a reasonable doubt?” Ms. Shanklin tried to answer the court three
times, stating, “It’s going to have to be beyond a reasonable doubt if I can’t
be 100 percent certain,” “Beyond a reasonable doubt. If I have any doubt,
then I’m not – I’m honest,” and “I would never do anything if I had a
doubt that something else could have come in. I could not do that.”
The record clearly provides an ample basis to support the trial court’s
grant of the State’s motion to strike Ms. Shanklin. Her initial answers to
the State’s questioning indicated she would hold the State to a “100
percent” burden. Appellant’s attempts at remediation drew a response of
“Beyond a reasonable doubt, I can be 100 percent, yes.” The trial judge’s
explanation of the burden of proof spurred Ms. Shanklin to argue the
point. Ms. Shanklin’s final word on the matter was, “I would never do
anything if I had a doubt that something else could have come in. I could
14
not do that.” This was and equivocating venireperson. It cannot be shown
that the court’s ruling on the State’s motion to strike Ms. Shanklin fell
outside the zone of reasonable disagreement. The Appellant’s point of
error should be denied.
POINT OF ERROR 2: Did the trial court err in denying Appellant’s
Batson challenge to the State’s peremptory strike of an African-American
venireperson?
Statement of Facts
Venireperson Lewis Wright was the sole African-American on the
panel who was the subject of a State’s peremptory strike. (RR XXX – 144).
Asked by the State about his thought on the burden of proof beyond a
reasonable doubt, Mr. Wright responded, “That’s a tough question.” (RR
XXX – 113). He also opined that, “The ultimate result, if it ended up being
a sentence of a death sentence, I can’t say I personally agree with that. (RR
XXX – 115). Mr. Wright expanded on this thought, saying “to think that
you would be part of a decision making process that would put you in a
position to choose whether another human being is worthy of existing or
not, and as a deeply spiritual and religious man, that’s tough.” (RR XXX –
119). Mr. Wright held the belief that the “economics of an individual could
possibly play a part in the outcome of a case.” (RR XXX – 132).
Appellant made a Batson challenge to the peremptory strike, asking
the court to “require the State to provide some sort of race-neutral reason
on this issue. (RR XXX – 144-145). Batson v. Kentucky, 476 U.S. 79, 106 S. Ct.
15
1712, 90 L. Ed. 2d 69 (1986). The State replied that “the defense cannot
make a prima facie case of discrimination on this case.” (RR XXX – 145).
Appellant responded that Mr. Wright had “not provided any particular
answer that would be any different than, obviously, the majority of white
jurors in this case.” (RR XXX – 145). The State pointed out that it had used
seven peremptory strikes, all on white veniremen, to which Appellant
responded that Mr. Wright was the first African-American venireperson
who had yet qualified to serve on the jury. (RR XXX – 145-146). The court
asked if Appellant was trying to make a prima facie case “simply because
he’s black. That’s basically what you’re telling me is that because he’s
black, then it follows that the State is striking him because of his race.” (RR
XXX – 146). Appellant responded that “it appears that way, simply
because, as we’ve said, I mean, he’s the first black juror that we’ve been
able to qualify…. and I can’t show a pattern, in large part, just because it’s
the first qualified juror we’ve had.” (RR XXX – 147-147). The court ruled
that Appellant had not made out a prima facie case of purposeful
discrimination. (RR XXX – 147).
The State was then allowed to put on record its race-neutral reasons
for striking Mr. Wright. These included Mr. Wright’s questionnaire
responses regarding his views on the death penalty and the quality of
representation for the wealthy as opposed to that for the poor. (RR XXX –
148-149). The State’s counsel also was concerned about Mr. Wright’s
hesitancy on certain issues, including the burden of proof and Mr. Wright’s
16
ability as a spiritual and religious man to convict and potentially impose a
death sentence. (RR XXX – 149-152). The court stated that, had it found a
prima facie case, it would also have found the State’s rationale for the strike
to be race-neutral. (RR XXX- 152-153).
Argument
A reviewing court may overturn a trial court’s ruling on a Batson
challenge only if the ruling was clearly erroneous. Snyder v. Louisiana, 552
U.S. 472, 477, 128 S. Ct. 1203, 170 L. Ed. 2d 175 (2008); Young v. State, 283
S.W. 3d 854, 966 (Tex. Crim. App. 2009) cert. denied, 558 U.S. 1093, 130 S. Ct.
1015, 175 L. Ed. 2d 622 (2009). This highly deferential standard is used
because of the trial court’s unique position to make determinations
regarding the prosecutor’s credibility and demeanor, as well as the
demeanor of the prospective jurors. Snyder, 552 U.S. at 477; Gibson v. State,
144 S.W. 3d 530, 534 (Tex. Crim. App. 2004). A ruling is clearly erroneous if
it leaves the reviewing court with the definite and firm conviction that a
mistake has been committed. Guzman v. State, 85 S.W. 3d 242, 254 (Tex.
Crim. App. 2002; United States v. Fernandez, 887 F. 2d 564, 567 (5th Cir. 1989).
Appellate review of the record of the voir dire and Batson hearing is done
in the light most favorable to the trial court’s ruling. Young at 866.
Striking a prospective juror on the basis of race violates constitutional
guarantees of equal protection. U.S. Const. amend. XIV; Batson, 476 U.S. at
89; Tex. Code Crim. Proc. art. 35.261. Resolution of a Batson challenge
potentially involves a three-step process. Snyder 552 U.S. at 476. The first
17
step in that process requires that the defendant make a prima facie case
showing that the State exercised a peremptory strike in a discriminatory
manner. Id.; Young at 866. The State is not required to give a race-neutral
reason for a challenged strike unless the defendant first establishes a prima
facie case of discrimination. Rousseau v. State, 824 S.W. 2d 579, 581 (Tex.
Crim. App. 1992).
The initial burden of establishing a prima facie case is not onerous. Id.
at 584. The defendant must show that he is a member of a cognizable racial
group, that the State exercised peremptory strikes to remove venirepersons
based on their race, and the defendant has offered evidence of relevant
facts that tend to show challenges made by the State were for reasons based
on race. Tex. Code Crim. Proc. art. 35.261(a); Rousseau at 584. Although the
racially discriminatory striking of even one minority venireperson will
violate Batson, the defendant must prove discrimination by more than the
mere fact that a minority venireperson was struck by a peremptory
challenge. United States v. Branch, 989 F. 2d 752, 755 (5th Cir. 1993). If this is
the only evidence proffered by the defendant, a prima facie case does not
arise. Id. The trial court is not required to ask for and evaluate the
prosecutor’s grounds for exercising peremptory strikes unless and until a
prima facie case of discrimination has been made. Id.
In the case at bar, Appellant’s only argument was that a peremptory
strike had been made simply because Mr. Wright was the only African-
American venireperson who had yet qualified for the jury. A nonexclusive
18
list of factors that might give rise to a prima facie case of discrimination
includes a “pattern” of strikes, the nature of questions asked by the
prosecutor on voir dire, and the prosecutor’s statements during voir dire.
Batson, 476 U.S. at 96-97; Branch at 755; Keeton v. State, 749 S.W. 2d 861, 867
(Tex. Crim. App. 1988). Appellant offered only that Mr. Wright had “not
provided any particular answer that would be any different than,
obviously, the majority of white jurors in this case.” Appellant did not
offer to expand this point to demonstrate that the nature of the questions
and statements by the State indicated any discriminatory intent. The trial
judge was able to hear the voir dire, including the colloquy concerning Mr.
Wright’s equivocation on burden of proof and assessment of punishment,
as well as his concerns stemming from his spiritual and religious
convictions.
Appellant has not shown that the trial court’s ruling was clearly
erroneous under the deferential standard enunciated in Snyder, and this
point of error should be denied.
POINT OF ERROR 3: Did the trial court err in allowing the admission of
an extraneous bad act?
Statement of Facts
Marion Bible, one of the shooting victims, testified that he knew
Appellant and the Cummings brothers. (RR XXXIII – 217-218). Bible
recounted a run-in between Keenan Hubert and Rickey Cummings at a
19
Waco park in May of 2010. (RR XXXIII – 223). Rickey Cummings was
accompanied by his brother D’Arvis and Appellant. (RR XXXIII – 222).
When Bible started to testify to the exchange of words, Appellant’s hearsay
objection was sustained. (RR XXXIII – 223). Bible also testified to another
run-in between Hubert and Rickey Cummings on the night of the murders.
(RR XXXIII – 234). The State’s question whether words were exchanged
drew a hearsay objection, upon which the court admonished Bible not to
say anything anyone had told him. (RR XXXIII – 234-235). Later Bible was
asked if he had reported to a police investigator what he had heard about
an AK-47 having been purchased by Appellant’s girlfriend. (RR XXXIII –
246). The State responded to the hearsay objection, explaining the question
was directed to what Bible himself had told the investigator. (RR XXXIII –
247). The objection was overruled. (RR XXXIII – 247).
Prior to cross-examination, outside the presence of the jury, the
attorneys argued the admissibility of Hubert’s statements to co-defendant
Rickey Cummings on the night of the murders. (RR XXXIII – 249-253). The
State argued that the statement consisted of song lyrics that Hubert
directed toward Cummings, intended as a taunt. (RR XXXIII – 250). As
such, the statement was not being offered for the truth of the matter
asserted. (RR XXXIII – 250-251). Rather, it went to the prior relationship
between the victim Hubert and the co-defendant Rickey Cummings, and
further explained the intent and motive of the co-defendant. (RR XXXIII –
251-252). The court overruled the Appellant’s hearsay and relevance
20
objections. (RR XXXIII – 252-253). On redirect, Bible was asked what
Hubert had told Rickey Cummings the night of the murders, to which
Appellant reiterated his objection. (RR XXXIII – 267-268). The objection
being overruled, Bible related the song lyrics that Hubert had taunted
Cummings with, “I know you’re strapped but you cowards like to play
hard, but knowing that, you don’t want to catch the murder charge. (RR
XXXIII – 268).
The State then asked Bible if he had ever seen Appellant in possession
of firearms prior to the night of the murders. (RR XXXIII – 269).
Appellant’s counsel approached and a bench conference was held outside
the presence of the jury. (RR XXXIII – 269-270). During the conference, the
State advised that the expected testimony would show that Appellant had,
on separate occasions, been in possession of .38-caliber, .40-caliber, and .45-
caliber firearms. (RR XXXIII – 271). The testimony was being offered to
show that Appellant had been in recent possession of firearms having the
same calibers as those used in the murders. (RR XXXIII – 276). Appellant
objected on the bases that the State had not provided notice of these
matters as prior bad acts; that the same testimony as offered at the trial of
Rickey Cummings indicated that the events had transpired a month or two
before the murders, thus rendering them too remote; that the testimony
went beyond the scope of redirect examination; that the evidence was not
relevant; and if relevant, that the probative value of the evidence was
outweighed by its prejudicial effect. (RR XXXIII – 272-273). The State
21
argued that the events did not indicate prior bad acts requiring notice, as
no evidence would be adduced showing that Appellant’s possession of the
firearms was illegal due to his status as a convicted felon. (RR XXXIII –
272). The court overruled the objections, finding that the testimony did not
concern prior bad acts, that a balancing test was therefore not required, and
that if such a test was required that the evidence was more probative than
prejudicial. (RR XXXIII – 274, 277). Mr. Bible was then allowed to testify to
the three occasions when he had seen Appellant with the different kinds of
guns. (RR XXXIII – 278-284). The three events had happened within the
year between Bowers’ murder and the murders of Hubert and Sneed, one
of them happening within a month or two of the Hubert and Sneed
murders. (RR XXXIII – 279, 283).
During the redirect examination of Nickoll Henry, she was asked
about an event about two weeks before the murders when she saw
Appellant carrying a weapon. (RR XXXV – 221-222). At the ensuing bench
conference, the State proffered that the testimony would show that on the
occasion, Appellant and Rickey Cummings had had a confrontation with a
third party, and both Appellant and Cummings had been carrying pistols.
(RR XXXV – 222-223). Appellant advised that no notice of this had been
provided, to which the State responded that the defense had been given a
notice via email. (RR XXXV – 223-224). Appellant then specified his
objections that the evidence was an extraneous matter being used to show
conformity with the character traits of violence and carrying weapons,
22
relevance, and prejudicial effect outweighing probative value. (RR XXXV –
224). The State argued that cross-examination of prior law enforcement
witnesses had revealed a defense theory that Appellant had not had the
opportunity to possess the weapons used in the murders. (RR XXXV – 224-
225). After hearing argument of counsel, the court ruled that the evidence
was relevant and that its probative value outweighed its prejudicial effect.
(RR XXXV – 228). Ms. Henry then testified that, about two weeks before
the murders, she had witnessed an incident wherein a group including
Appellant and Rickey Cummings had approached a man identified as
Carlos Smith. (RR XXXV – 229). Appellant and Cummings had been
armed with handguns. (RR XXXV – 231). Ms. Henry recalled the incident
because her young son had been present. (RR XXXV – 231).
Argument
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. Tex.
R. Evid. 404(b). Texas Rule of Evidence 403 provides that even relevant
evidence may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice. Relevant evidence is
evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence. Tex. R. Evid. 401.
However, Rule 404(b) also provides that extraneous offense evidence may
be admissible for other purposes. Johnson v. State, 145 S.W.3d 215, 219 (Tex.
23
Crim. App. 2004). One of the purposes for which extraneous offense
evidence is admissible is when a defendant raises a defensive issue that
negates one of the elements of the offense. Id. A party may introduce
evidence of other crimes, wrongs, or acts if such evidence logically serves
to make more or less probable an elemental fact, an evidentiary fact that
inferentially leads to an elemental fact, or defensive evidence that
undermines an elemental fact. Montgomery v. State, 810 S.W. 2d 372, 387
(Tex. Crim. App. 1991)(opinion on rehearing). The issue of whether
extraneous offense evidence has relevance apart from character conformity
is a question for the trial court. Moses v. State, 105 S.W. 3d 622, 627 (Tex.
Crim. App. 2003).
Appellant was charged with causing the deaths of the victims by
shooting them with a firearm. (CR I – 10). Thus, the State was obligated to
prove Appellant’s use of a firearm. When a challenge is presented as to a
defendant’s opportunity to commit an essential element of an offense, it
becomes proper to introduce extraneous offense evidence to rebut the
defensive issue. Ransom v. State, 920 S.W. 2d 288, 301 (Tex. Crim. App.
1996). The standard of review for a trial court’s ruling under the Rules of
Evidence is abuse of discretion. Sauceda v. State, 129 S.W. 3d 116, 120 (Tex.
Crim. App. 2004). The trial court’s ruling will be upheld if it was correct
under any theory of law applicable to the case, in light of what was before
the trial court at the time the ruling was made. Id. Extraneous offense
evidence is admissible under Rules 404(b) and 403 if a two-prong test is
24
satisfied: whether the extraneous offense evidence is relevant to a fact of
consequence in the case apart from character conformity, and whether its
probative value is not substantially outweighed by unfair prejudice.
Johnson at 220. As long as the trial court’s ruling on the issue falls within
the zone of reasonable disagreement, appellate courts will uphold that
ruling. Montgomery at 391.
In the case at bar, the State presented the testimony of Bible and Henry
to rebut a defensive theory of lack of opportunity. The court found that the
testimony showing Appellant’s recent possession of firearms having the
same characteristics as those used to murder Sneed and Hubert was
relevant to rebut the defensive theory. The evidence was related to a fact of
consequence apart from character conformity. The court further performed
the balancing test required under Rule 403, finding that the probative value
outweighed the prejudicial effect. The court’s ruling did not fall outside
the zone of reasonable disagreement, and Appellant’s point of error should
be denied.
POINT OF ERROR 4: Did the trial court err in allowing into evidence
items seized in a search of a co-defendant’s vehicle?
Statement of Facts
The trial court held a bench conference prior to the State calling Waco
Police Sergeant Steve Anderson. (RR XXXIV – 268). The State proffered
that Anderson would be called to sponsor items seized upon the arrest of
25
co-defendant Rickey Cummings on April 1, 2011. (RR XXXIV – 269).
Appellant objected to this testimony and evidence on the grounds of
relevance, the prejudicial value of evidence outweighing its probative
value, and not having an opportunity to confront the co-defendant as to
why he might have had a gun in his vehicle when arrested. (RR XXXIV –
270-217). In response the prosecution pointed out that, since this was a
party offense, the State had the right to prove the guilt of the co-defendant
Rickey Cummings and Appellant’s guilt as a party. (RR XXXIV – 271).
Further, the State argued that the evidence was relevant on this point as
other evidence would be adduced from text messages that, while Appellant
was at large, he was trying to get a .40-caliber pistol. (RR XXXIV – 271).
Appellant rejoined that the gun in Cummings’ car was not used in the
murders and therefore not relevant, that the probative value was
outweighed by the prejudicial effect, and the defense did not have the right
to confront and cross-examine Cummings. (RR XXXIV – 271-272). The
State replied that the evidence showed that the pistol found in Cummings’
car was intended for Appellant, thus making it extremely relevant to the
prosecution’s case. (RR XXXIV – 272). The court found that the evidence
was relevant, that its probative value outweighed its prejudicial effect, and
further overruled Appellant’s confrontation objection. (RR XXXIV – 272-
273). For the purpose of clarifying the record, the State’s counsel stated
that the witness would not be asked to divulge anything that Rickey
Cummings said to him. (RR XXXIV – 273). Sergeant Anderson sponsored
26
the introduction of the items into evidence over Appellant’s running
objection. (RR XXXIV – 281-282, 290).
Argument
A trial court’s decision to admit or exclude evidence is reviewed under
an abuse of discretion standard. Martinez v. State, 327 S.W. 3d 727, 736
(Tex. Crim. App. 2010). The trial court does not abuse its discretion unless
its ruling lies outside the zone of reasonable disagreement. Id.; De La Paz v.
State, 279 S.W. 3d 336, 343-344 (Tex. Crim. App. 2009).
Although admissible under Rule 404(b), evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of issues, or misleading the jury. Tex. R. Evid. 403.
When undertaking a Rule 403 analysis, the trial court must balance (1) the
inherent probative force of the proffered 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).
Rule 403 favors admissibility, and the presumption is that relevant
evidence will be more probative than prejudicial. Montgomery at 389; De La
27
Paz at 343. As with Rule 404, a trial court does not abuse its discretion
when it admits or excludes evidence pursuant to Rule 403 so long as its
decision is within the zone of reasonable disagreement. De La Paz at 343-
344.
In the case at bar, the State proffered the relevance of the items
recovered on the arrest of the co-defendant. Namely, other evidence
showed that Appellant and co-defendant Rickey Cummings had acted in
concert, as shown by their phone and text records. Amongst these records
were communications by Appellant showing his desire to obtain a .40-
caliber pistol while he remained at large. Further, eyewitness accounts
showed that Appellant and co-defendant Rickey Cummings had, while
armed, confronted various subjects they believed were responsible for the
murder of Emuel Bowers. All of these matters factored into showing
motive, intent and plan regarding the commission of the Hubert and Sneed
murders, and their attempts to avoid detection and apprehension after the
fact. The items found in co-defendant Rickey Cummings’ car, particularly
the .40-caliber firearm and the various kinds of ammunition, were highly
relevant to the prosecution’s case. The trial court’s ruling admitting these
items into evidence fell within the zone of reasonable disagreement, and
was not an abuse of discretion.
In support of his confrontation claim, Appellant cites to Crawford v.
Washington, 541 U.S. 36, 57, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), and its
progeny. These lines of cases interpret a defendant’s right to confront
28
witnesses against him. U.S. Const. amend. VI. Without exception, these
cases deal with actual witnesses and testimonial and non-testimonial
statements. The issue presented by Appellant regarding a proposed right
of confrontation in dealing with the admission of tangible items of
evidence is without basis and presents no justiciable issue. The trial court
did not abuse its discretion in admitting evidence in the face of a
confrontation clause objection.
Appellant’s fourth point of error is without merit and should be
denied.
POINT OF ERROR 5: Did the trial court err in admitting into evidence a
hearsay statement of a co-defendant made prior to the commission of the
offense and not in furtherance of a conspiracy?
Statement of Facts
Prior to the testimony of Miche’al Atkins, a hearing was held outside
the presence of the jury, pursuant to Appellant’s motion in limine. (RR
XXXV – 79). In this hearing, the State proffered that Atkins would testify
that on the night of murders, he witnessed a statement by co-defendant
Rickey Cummings. (RR XXXV – 80). The statement was made in the
parking lot of the apartment complex when a car came close to hitting
Cummings. (RR XXXV – 80). Cummings had yelled at the driver, “I would
have shot that car if you hit me.” (RR XXXV – 80). The State argued for
admission of the statement under the excited utterance hearsay exception.
(RR XXXV – 80-81). Appellant argued that the statement was inadmissible
29
hearsay, that its admission would deprive him of the right to confront
Rickey Cummings regarding the statement, that the statement was not
made as part of any conspiracy, and its prejudicial effect would outweigh
any probative value. (RR XXXV – 81-82). The State responded that the
statement was being offered to show co-defendant Rickey Cummings’ state
of mind shortly before the murders, as well as to show that Cummings was
armed. (RR XXXV – 82). Confrontation did not apply, as the statement
was not testimonial, and it was admissible as an excited utterance
exception to the hearsay rule. (RR XXXV – 82-83). For these reasons, the
State argued, the probative value outweighed its prejudicial effect. (RR
XXXV – 83). The trial court asked for clarification on the facts and
circumstances surrounding the statement, verifying that the incident
happened around a half-hour before the murders, and that phone records
would show that Cummings received a call from Appellant shortly before
the murders were committed. (RR XXXV 86-87). The court overruled
Appellant’s objection to admitting the statement on all proposed bases.
(RR XXXV – 87).
Micha’el Atkins then testified that when Cummings nearly got hit by
the car, his response was, “If you hit me, I’ll shoot this motherfucker up.”
(RR XXXV – 97-98). Atkins’ father then invited Cummings to come inside
the apartment to smoke marihuana. (RR XXXV – 98-99). After ten or
fifteen minutes, Cummings got a phone call and left the apartment. (RR
XXXV – 99).
30
Argument
The state presented co-defendant Cummings’ statement under the
excited-utterance exception to the hearsay rule. Tex. R. Evid. 803(2). This
exception allows the admission of an out-of-court statement relating to a
startling event or condition made while the declarant is under the
excitement relating to a startling event or condition made while the
declarant is under the stress of excitement caused by the event or
condition. Id.
For the excited utterance exception to apply, (1) the exciting event
must be startling enough to evoke a truly spontaneous reaction from the
declarant, (2) the reaction to the startling event must be quick enough to
avoid the possibility of fabrication, and (3) the resulting statement should
be sufficiently “related to” the startling event to ensure the reliability and
trustworthiness of that statement. McCarthy v. State, 257 S.W. 3d 238, 241-
242 (Tex. Crim. App. 2008). In the case at bar, Rickey Cummings exclaimed
immediately after nearly getting hit by a car, “If you hit me, I’ll shoot this
motherfucker up.” This situation is a near-perfect example of an excited
utterance and undoubtedly related to the startling event. Cummings had
just been nearly hit by a car. His statement was made immediately. He
was clearly still under the excitement of the startling event. Based on these
factors, the trial court could conclude that the statement qualified as an
excited utterance. See, Zuliani v. State, 97 S.W. 3d 589, 596 (Tex. Crim. App.
2003).
31
Review of a trial court’s determination of whether a statement is
admissible under the excited-utterance exception is for abuse of discretion.
Wall v. State, 184 S.W. 3d 730, 743 (Tex. Crim. App. 2006). The trial court
did not abuse its discretion by admitting Rickey Cummings’ statement
under the excited-utterance exception to the hearsay rule.
Appellant also lodged an objection on the basis of the Sixth
Amendment confrontation clause. The admission of a hearsay statement
made by a non-testifying declarant violates the Sixth Amendment if the
statement was testimonial, and the defendant lacked an opportunity for
cross-examination. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
L. Ed. 2d 177 (2004). A “testimonial” statement is inadmissible absent a
showing that the declarant is presently unavailable and the defendant had
a prior opportunity to cross-examine, even if the statement falls under a
firmly rooted hearsay exception. Id. at 59-60, 68. The Supreme Court
identified three types of statements which could be regarded as
testimonial: ex parte in-court testimony or its functional equivalent;
extrajudicial statements contained in formalized testimonial materials; and
statements which were made under circumstances which would lead an
objective witness reasonably to believe that the statement would be
available for use at a later trial. Id. at 51-52.
Although a reviewing court defers to the trial’s determinations of
historical fact and credibility, a determination of a constitutional legal
ruling, i.e., whether a statement is testimonial or non-testimonial, is
32
reviewed de novo. Wall v. State, 184 S.W. 3d 730, 742 (Tex. Crim. App.
2006).
Under either the subjective determination of whether a statement
constitutes an excited utterance, or the objective determination of whether
an objectively reasonable declarant would perceive his statement as
testimonial, it seems clear that Rickey Cummings’ statement was not
testimonial. See, Id. at 743. An exclamation made immediately after being
side-swiped by a car cannot be reasonably expected by any objectively
reasonable declarant to be a statement that would be available for use at a
later trial.
Application of the balancing test regarding probative value versus
prejudicial effect, discussed earlier, shows that the court’s ruling on
admissibility did not fall outside the zone of reasonable disagreement as
enunciated in Montgomery.
The trial court did not err in admitting the statement of co-defendant
Rickey Cummings as either an excited utterance or as a non-testimonial
statement. Appellant’s fifth point of error should be denied.
POINT OF ERROR 6: Did the trial court err in admitting into evidence
cellular telephone records in violation of Appellant’s federal and state
constitutional rights?
Statement of Facts
Appellant filed a generalized pretrial motion to suppress evidence “in
violation of any provisions of the Constitution or laws of the State of Texas,
33
or of the Constitution or laws of the United States of America….” (CR I –
27-28). Appellant further filed a motion to suppress evidence obtained
through cell phone records. (CR I – 99-102). Appellant also filed a general
motion to treat all objections as being brought under both the state and
federal constitutions and other applicable state and federal law. (CR I – 78-
79). At the Appellant’s suggestion at a pretrial hearing, a ruling on the
motion to suppress cell phone records was held in abeyance until the time
of trial. (RR XII –14-14).
Prior to the testimony of James Owens, a bench conference was held.
(RR XXXV – 233-240). The State advised the court that Mr. Owens would
be called to sponsor redacted versions of Rickey and D’Arvis Cummings’
cell phone analysis reports. (RR XXXV – 233-234). Appellant objected to
Rickey Cummings’ cell phone report on the bases of relevance, prejudicial
effect outweighing probative value, and hearsay. (RR XXXV – 238). The
State responded that the actual text messages had been redacted from the
report, leaving only a data sheet containing properties and indices, as well
as phone books. This information included some photographic images,
several of which were irrelevant and which had likewise been redacted.
(RR XXXV – 238-239). Appellant objected on confrontation grounds, and
reiterated the same objections to the admission of D’Arvis Cummings’
phone report. (RR XXXV – 239). The court overruled the objections and
admitted both phone reports. (RR XXXV – 239-240). Mr. Owens sponsored
34
the phone reports, which were admitted over objection. (RR XXXV – 248,
252-253).
The State moved to introduce business records of Metro PCS related to
the phones of Appellant, co-defendants D’Arvis and Rickey Cummings,
and their associates Sheronica Patterson, Shelia Bowers, Shacira Love, and
Brittany Snell. (RR XXXVI – 9-10). Appellant then requested a bench
conference. (RR XXXVI – 10). Appellant objected to the records, contained
in State’s exhibits 183-189 and 252, on the bases of relevance, hearsay, and
possible extraneous acts. (RR XXXVI – 11-12).
The State responded that State’s Exhibit 183 simply showed cell tower
locations. (RR XXXVI – 12). State’s Exhibit 184 contained Appellant’s cell
phone information including text messages. (RR XXXVI – 13). The
messages sent by Appellant were not hearsay and were relevant, while the
messages received by Appellant were admissible to show the context of
Appellant’s messages used in the course of text conversations. (RR XXXVI
– 13). The records relating to the Cummings brothers were those of co-
defendants, and contained subscriber information and records of calls sent
and received but did not include text messages. (RR XXXVI – 14-15).
Records relating to Sheronica Patterson, Takelia Patterson, Shelia Bowers,
Shacira Love and Brittany Snell were directly tied to communications each
of them had with one or more of the co-defendants, the relevance of which
would be demonstrated with additional witness testimony. (RR XXXV –
15-19).
35
Appellant responded that Sheronica Patterson’s phone records
contained hearsay text messages with other parties, which were also
redundant of Appellant’s phone records. (RR XXXVI – 19-20). The State
responded that these records indicated use of electronic signatures that
would differentiate use of the phone by Patterson and use by Takelia
Patterson, Appellant’s wife, thus being relevant to show the identity of the
person communicating with Appellant.
Appellant protested that direct testimony from Sheronica Patterson
would obviate the need for her phone records, that the entirety of the
proffered records was more prejudicial than probative, and that the records
should not be admissible since they were obtained without a warrant. (RR
XXXVI – 21-22). The court overruled the objections, and the State clarified
that, although the records had not been obtained through warrant, they
were obtained by court order. (RR XXXVI – 22). The Metro PCS records
were presented through the testimony of Ken LeCesne. (RR XXXVI – 6-
175).
Argument
To preserve error for appeal, a party must present a timely and specific
objection. Tex. R. App. P. 33.1 Complaint on appeal must comport with
the objection at trial. Wilson v. State, 71 S.W. 3d 346, 349 (Tex. Crim. App.
2002). Prior to Owens’ and LeCesne’s testimony, Appellant objected to
admission of the cell phone and text message records generally on the
bases of relevance, prejudicial effect outweighing probative value, and
36
hearsay. (RR XXXV – 238). Appellant objected to the records, contained in
State’s exhibits 183-189 and 252, on the bases of relevance, hearsay, and
possible extraneous acts. (RR XXXVI – 11-12). Appellant further
contended that the records should not be admissible since they were
obtained without a warrant. (RR XXXVI – 21-22). While Appellant was
granted running objections to Owens’ and LeCesne’s testimony, no specific
objections made to any of the specific statements which were introduced
through their testimony. While a running objection is generally sufficient
to preserve error, any objection must be sufficiently specific for the court to
make its ruling. Appellant’s running objection was as to admissibility of
the phone records and text conversations generally. Since no specific
objections were lodged in regard to specific statements contained in the
records as they were offered, error has not been preserved as to the
admissibility of specific statements. In other words, the trial court was not
afforded an opportunity to rule on whether any particular statement was
objectionable under one or more of the omnibus objections to admissibility
of the records, generally; i.e., relevance, hearsay, or extraneous acts.
When reviewing a trial court’s ruling on a motion to suppress, the
evidence must be viewed in the light most favorable to the trial court’s
ruling. Wiede v. State, 214 S.W. 3d 17, 24 (Tex. Crim. App. 2007); State v.
Kelly, 204 S.W. 3d 808, 818 (Tex. Crim. App. 2006). When the record is
silent on the reasons for the trial court’s ruling, the reviewing court implies
the necessary fact findings that would support the trial court’s ruling if the
37
evidence, viewed in the light most favorable to the trial court’s ruling,
supports those findings. State v. Garcia-Cantu, 253 S.W. 3d 236, 241 (Tex.
Crim. App. 2008). The appellate court then reviews the trial court’s legal
ruling de novo unless the implied fact findings supported by the record are
also dispositive of the legal ruling. Kelly at 819. The trial court’s ruling
must be upheld if it is supported by the record and correct under any
theory of law applicable to the case, even if the trial court gave the wrong
reason for its ruling. State v. Stevens, 235 S.W. 3d 736, 740 (Tex. Crim. App.
2007); Armendariz v. State, 123 S.W. 3d 401, 404 (Tex. Crim. App. 2003), cert.
denied, 541 U.S. 974, 124 S.Ct. 1883, 158 L.Ed. 2d 469 (2004). Tangential to
this point is Appellant’s assertion that the State waived its opposition to
Appellant’s relevancy argument at trial, because “A conclusory statement
unsupported by argument or authority is considered waived.”
(Appellant’s Brief at 53). This rule applies to appellate proceedings, not to
trial rulings. Tex. R. App. P. 38.1(h); Tong v. State, 25 S.W. 3d 707, 710 (Tex.
Crim. App. 2000). The State did not waive any bases for the court’s ruling,
which can be presumed and upheld under any theory of admissibility
applicable to the case and which is supported by the record.
Appellant objected to admission of the records on the basis of
relevance. Relevant evidence is evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence. Tex. R. Evid. 401. The cell phone records of Appellant, his co-
38
defendants, and his close associates on the night of the murders showed
their location, who they were in communication with, their plan, their
motive and intent. Such records after the event showed their attempts to
avoid detection and apprehension, their attempts to get rid of evidence,
and their consciousness of guilt. Their cell phone and text message records
were relevant.
The statements of Appellant and his co-defendants were not hearsay,
but rather admissions of party opponents. Tex. R. Evid. 801(e)(2). The
statements of third parties were not hearsay, as they were not offered for
the truth of the matters asserted. Tex. R. Evid. 801(d). Rather, as pointed
out by the State at trial, these statements were used to show the context of
the text conversations in which the accused made admissions. The
statements being relevant, their probativeness outweighed their prejudicial
effect.
Appellant further objected that admission of the records and
statements contained therein violated his right of confrontation under
Crawford. As previously noted, Crawford applies only to testimonial
statements. The text messages were not made under such circumstances to
make them testimonial. Further, there has been no showing that the
declarants Sheronica Patterson, Shacira Love, or Shelia Bowers were
unavailable. In fact, Sheronica Patterson was actually present and sworn as
a witness, but did not take the stand.
39
Finally, Appellant has argued that the records were obtained in
violation of the Stored Communications Act. 18 USCA §2703(d). It has
been stipulated by Appellant that the State obtained the subject records
through a subpeona. (RR V – 8). The State clarified that, although the
records had not been obtained through warrant, they were obtained by
court order. (RR XXXVI – 22).
Law enforcement can compel providers to give them information
regarding cell phone records by obtaining a valid warrant, by obtaining a
court order showing “specific and articulable facts showing reasonable
grounds to believe the records are relevant and material to an ongoing
investigation, by consent of the subscriber, or by obtaining an
administrative subpoena. 18 USCA §2703(c), (d). Appellant relies on the
recent Supreme Court case of Riley v. California, ___ U.S. ___, 2014 WL
2864483 (2014). This case dealt with placement of a GPS tracking device on
a subject’s car. While concurrences in that case contained dicta in regard to
cell phone records, the holding did not deal with cell phone records, the
issue before this Court.
If error was admitted regarding the text messages or cell phone
records, the error was harmless. The improper admission of evidence is a
non-constitutional error that an appellate court disregards unless the error
affected an appellant’s substantial rights. Tex. R. App. P. 44.2(b); Garcia v.
State, 126 S.W. 3d 921, 927 (Tex. Crim. App. 2004). A substantial right is
affected when the error had a substantial and injurious effect or influence
40
in determining the jury’s verdict. Id. An error does not affect a substantial
right if there is a fair assurance that the error did not influence the jury, or
had but a slight effect. Johnson v. State, 967 S.W. 2d 410, 417 (Tex. Crim.
App. 1998). Appellant’s sixth point of error is without merit and should be
denied.
POINT OF ERROR 7: Did the trial court err in admitting into evidence a
compelled statement of Appellant?
POINT OF ERROR 8: Were Appellant’s state and federal due process
rights violated because the trial court allowed the jury to consider an
admission by Appellant, without corroboration?
Statement of Facts
Through Monica Harper, Appellant’s probation officer, the State
presented during punishment a life history the Appellant wrote to fulfill a
probation assignment. (RR XL – 83-87). In this life history, Appellant
related numerous incidents of his drug and alcohol abuse, fighting, drug
dealing, shootings and robberies. (RR XL – 83-87).
Prior to Ms. Harper’s testimony, the court ruled on the statement’s
admissibility at a bench conference. (RR XL – 59-62). Appellant argued
that the making of the statement, it being required as a condition of
probation, was compelled. (RR XL – 59). Appellant also objected that the
statement included accounts of bad acts which were uncorroborated. (RR
XL – 59-60). The State responded that the statement was not the product of
41
custodial interrogation. Further, the State was not trying to prove that
Appellant committed the acts he claimed in the statement, but rather the
Appellant’s adoption of the statement as his life history. (RR XL – 60-61).
The Court overruled the objections, but advised that the standard
extraneous offense instruction would be given. (RR XL – 62).
Argument
Code of Criminal Procedure Article 37.071 §2(a)(1) provides that
evidence may be presented by the State and the defendant as to any matter
that the court deems relevant to sentence, including evidence of the
defendant’s background or character or the circumstances of the offense
that mitigates against the imposition of the death penalty. Appellant
argues that the life history statement he provided to his probation officer
was compelled under the “classic penalty” scenario. As such, he contends,
the giving of this statement falls outside the requirements of Code of
Criminal Procedure Article 38.22, regarding the admissibility of statements
by an accused.
The critical inquiry is whether the State went beyond merely requiring
Appellant, as a probationer, to address matters relevant to his probationary
status or whether it went further and required him to choose between
making incriminating statements and jeopardizing his conditional liberty
by remaining silent. Chapman v. State, 115 S.W.3d 1, 16-17 (Tex. Crim. App.
2003). In the case at bar, the contents of Appellant’s life history statement
was fully within his discretion. In this case as in Chapman, the State did not
42
overtly or impliedly demand that Appellant confess all his previous crimes
or be punished. Chapman at 22. The trial court therefore did not err in
admitting Appellant’s life history statement.
Appellant’s life history statement was not intended to be evidence of
his commission of prior bad acts. As the prosecutor pointed out, this was
punishment evidence having a bearing on the issues of mitigation and
future dangerousness. In making the statement, Appellant was relating his
image of who he was and the way he perceived himself – issues highly
relevant to a capital punishment determination. The court allowed the
admission on this basis, and for good measure provided a prophylactic
extraneous offense instruction.
If the certain specific references Appellant made in the statement are
considered evidence of extraneous offenses, there is no requirement that
the State corroborate them. The determination of whether an extraneous
offense has been proven beyond a reasonable doubt is an issue for a jury to
determine. Mitchell v. State, 931 S.W. 2d 950, 954 (Tex. Crim. App. 1996).
And, to support a conviction, the State must corroborate an extrajudicial
confession. Emery v. State, 881 S.W. 2d 702, 705 (Tex. Crim. App. 1994).
However, the law does not require the State to corroborate an extrajudicial
admission. Padron v. State, 988 S.W. 2d 344, 346 (Tex. App. – Houston [1st
Dist.] 1999). The trial court did not err in admitting the life history
statement of Appellant, and his seventh and eight points of error should be
denied.
43
POINT OF ERROR 9: Did the trial court err by admitting letters and
drawings made by Appellant?
Statement of Facts
During the cross-examination of Dr. Antoinette McGarrahan, the State
moved to introduce two letters written by Appellant. (RR XLII – 113).
Appellant objected on the bases of authentication, relevance, and the
probative/prejudicial balancing test. (RR XLII – 113). The State responded
that the letters could be authenticated by having Dr. McGarrahan compare
signatures on the letters with a known signature of Appellant with which
she was familiar, or by recalling Appellant’s wife. (RR XLII – 114). The
State further offered that the letters and the drawings contained therein
were relevant to rebut Dr. McGarrahan’s testimony that Appellant was
suffering from language, verbal skill, and fine motor skill deficits as a result
of his medical history related to having a brain abscess. (RR XLII – 115).
The letters reflected Appellant’s ability to compose full-page letters, clearly
express ideas, and to produce detailed drawings. (RR XLII – 115). The
court overruled the objections and found that the probative value of
evidence outweighed their prejudicial effect. (RR XLII – 116).
Argument
The admission of evidence is a preliminary question to be decided by
the trial court. Tex. R. Evid 104(a). To be admissible, the evidence must be
relevant to a fact in controversy. Tex. R. Evid. 401, 402. A condition
precedent to admissibility is authentication. Tex. R. Evid. 901(a). The trial
44
court itself need not be convinced the proffered evidence is authentic, but it
must determine whether the proponent has supplied facts sufficient to
support a reasonable jury determination that the proffered evidence is
authentic. Tienda v. State, 358 S.W. 3d 633, 637-638 (Tex. Crim. App. 2012).
Appellate review of a trial court’s ruling on a primary question of
admissibility is the deferential standard of abuse of discretion. If the trial
court’s ruling is at least within the zone of reasonable disagreement, the
reviewing court should not interfere. Id; Montgomery at 391.
In the case at bar, Dr. McGarrahan had testified to Appellant’s
cognitive and motor deficits. The State offered the two letters to show that
Appellant was capable of composing letters, that he had notable language
and verbal skills, and was able to create intricate and detailed drawings.
As such, the letters were relevant to rebut Dr. McGarrahan’s testimony.
The State further proffered that the letters had been sent by Appellant
while in jail and had been obtained from the jail mail. The letters were
signed by him and addressed to his wife. Internally, the letters contained
details regarding Appellant and his wife which indicated that they were
written by Appellant. Finally, the State offered that either Appellant’s wife
could be called to authenticate the letters or Dr. McGarrahan could
authenticate them by comparing the signatures with a signature known by
her to be Appellant’s in her treatment documents.
Finally, the court made the determination that the prejudicial effect of
the evidence did not outweigh its probative value.
45
The trial court did not err in finding Appellant’s letters to be relevant
or authentic, and did not err in its determination that their probative value
outweighed their prejudicial effect. Appellant’s ninth point of error is
without merit and should be denied.
POINT OF ERROR 10: Did the trial court err in admitting a music video
into evidence?
Statement of Facts
During the punishment phase, a bench conference was held prior to
the State’s cross-examination of Appellant’s brother, Lawrence Love. (XLI
– 58-62). The State intended to introduce a music video that had been
made by Lawrence Love as a commemorative to Emuel Bowers. (XLI – 58-
59). Appellant, Lawrence Love and Shelia Bowers all appeared in the
video, which had been made after Bowers’ murder and before the Sneed
and Hubert murders. (RR XLI – 58-59). The video contained numerous
references to violent acts and gang-related activity. (RR XLI – 58-60). The
State believed the video was relevant to rebut defensive contradictions of
Appellant’s gang affiliations, as well as to the punishment issues of future
dangerousness and mitigation. (RR XLI – 58-60). Appellant objected on
the bases that the video was not relevant, more prejudicial than probative,
and that the door had not been opened to its admission by previous
defensive evidence. (RR XLI – 59). The court overruled the objections,
finding the video to be relevant and more probative than prejudicial. (RR
XLI – 61-62).
46
Argument
As discussed in previous points, the music video in question was
presented in the punishment phase. It was relevant to issues of mitigation
and future dangerousness. A key issue was Appellant’s identity and
lifestyle as a member of a criminal street gang. The video, in which
Appellant prominently appeared, was rife with gang references, and
glorified the violence of that lifestyle. The video constituted an adoptive
statement by Appellant and went straight to mitigation issues. The trial
court did not err in admitting the video as being relevant, and probative
beyond any undue prejudice.
POINT OF ERROR 11: Did the trial court err in refusing to ensure that
the venire represented a fair racial proportion reflective of the county in
which the offense was committed?
Statement of Facts
Appellant’s motion to transfer venue was granted by the trial court,
which ordered the transfer to Williamson County. (CR I – 130-134, 148).
Appellant subsequently made a motion for the jury panel to reflect the
racial make-up of the populations of McLennan County and/or the entire
State of Texas. (CR I – 207-212). At the pretrial hearing on this motion, the
State assured the court that it was aware of proper jury selection
procedures, and that it would comply with the Batson line of case law as
well as all the rules prescribed by law and judicial interpretation. (RR XII –
23). Appellant then asked to court to assure that the jury panel reflect the
47
demographics of McLennan County, as opposed to those of Williamson
County. (RR IX – 24). In making its ruling on the motion, the court
advised that, “We’re going to make sure that all Batson issues are dealt
with, all requirements that the Constitution of the United States and this
State require to see – that are required to see that everyone gets a fair trial.
But as to this specific motion, if you’re asking me to have the Williamson
County Clerk summon – pick out 20 percent of – make sure that the jury
panel we assemble in this has a racial quota system in it, it’s denied.”
Argument
In what Appellant denominates a case of first impression, he argues
that he was denied a fair trial because the trial court did not ensure that the
venire reflected a fair cross-section of the community where the offense
occurred. As the State understands the issue, Appellant is asking this
Court to create a means outside current constitutional and statutory law to
require that the jury panel reflect specific racial proportions. The issue
arises in this case due to Appellant’s grant of a change of venue. As such,
this supposed violation is, at least in part, one of Appellant’s own making.
Appellant relies on Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58
L.Ed. 2d 579 (1979), and its progeny. The issue in Duren revolved around
the proper formation of the venire, and addressed discriminatory practices
in that area. It addressed remedies to ensure that the local venire panel
reflect the local racial profile.
48
Appellant does not suggest that the formation of the Williamson
County venire was done in violation of the constitutional safeguards
enunciated in Duren. The State’s position is that Appellant has not claimed
or shown any error in the granting of the motion to transfer venue, or in
the formation of the venire. No error is presented for the Court’s
consideration, and Appellant’s eleventh point of error should be denied.
Prayer
For the foregoing reasons, the State of Texas prays that this
Honorable Court affirm the conviction and punishment of ALBERT LOVE,
JR. for the offense of CAPITAL MURDER, and prays for such other and
further relief as may be provided by law.
Respectfully Submitted:
ABELINO ‘ABEL’ REYNA
Criminal District Attorney
McLennan County, Texas
/s/ Sterling Harmon_________
STERLING HARMON
Appellate Division Chief
219 North 6th Street, Suite 200
Waco, Texas 76701
[Tel.] (254) 757-5084
[Fax] (254) 757-5021
[Email]
sterling.harmon@
co.mclennan.tx.us
State Bar No. 09019700
49
Certificate of Compliance
This document complies with the typeface requirements of Tex. R.
App. P. 9.4(e) because it has been prepared in a conventional typeface no
smaller than 14-point for text and 12-point for footnotes. This document
also complies with the word-count limitations of Tex. R. App. P. 9.4(i), if
applicable, because it contains 12,011 words, excluding any parts exempted
by Tex. R. App. P. 9.4(i)(1).
Certificate of Service
I certify that I caused to be served a true and correct copy of this
State’s Brief by E-Filing Service on Appellant’s attorney of record.
DATE: 2/27/15____ /S/ STERLING HARMON__________
STERLING HARMON
50