Darrell Dwayne Broussard v. State

ACCEPTED
01-15-00628-Cr
FIRST COURT OF APPEALS
HOUSTON, TEXAS
12/15/2015 2:38:13 PM
CHRISTOPHER PRINE
CLERK
No. 01-15-00628-CR
In the
Court of Appeals
For the FILED IN
1st COURT OF APPEALS
First District of Texas HOUSTON, TEXAS
At Houston 12/15/2015 2:38:13 PM
 CHRISTOPHER A. PRINE
Clerk
No. 1330029
In the 183rd District Court
Of Harris County, Texas

DARRELL D. BROUSSARD
Appellant
V.
THE STATE OF TEXAS
Appellee


STATE’S APPELLATE BRIEF



DEVON ANDERSON
District Attorney
Harris County, Texas

KATIE DAVIS
Assistant District Attorney
Harris County, Texas
State Bar Number: 24070242
davis_katie@dao.hctx.net

ALYCIA HARVEY
Assistant District Attorney
Harris County, Texas

1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone: (713) 755-5826
Fax Number: (713) 755-5809

ORAL ARGUMENT WAIVED
 STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State waives

oral argument since the issues appear well-settled in Texas jurisprudence. But the

State will present argument if this Court deems it necessary.

IDENTIFICATION OF THE PARTIES

Counsel for the State:

Devon AndersonDistrict Attorney of Harris County

Katie DavisAssistant District Attorney on appeal

Alycia HarveyAssistant District Attorney at trial

Appellant or Criminal Defendant:

Darrell D. Broussard

Counsel for Appellant:

Allen Tanner—Counsel at trial

Thomas J. Lewis—Counsel on appeal

Trial Judge:

Honorable Reagan ClarkVisiting Judge of 183rd District Court

i
 TABLE OF CONTENTS
Page
STATEMENT REGARDING ORAL ARGUMENT .......................................................... i

IDENTIFICATION OF THE PARTIES ................................................................................ i

TABLE OF CONTENTS........................................................................................................... ii

INDEX OF AUTHORITIES ................................................................................................... iv

STATEMENT OF THE CASE ................................................................................................. 1

STATEMENT OF FACTS ........................................................................................................ 1

SUMMARY OF THE ARGUMENT ..................................................................................... 4

REPLY TO APPELLANT’S FIRST POINT OF ERROR .................................................. 5
I. Standard of Review and Applicable Law .............................................................. 7

II. The appellant failed to preserve his complaint regarding Trelles’ in-court
identification for appellate review............................................................................. 8

III. Even if the issue was preserved, the appellant failed to show that the in-
court identification was so tainted by an impermissibly suggestive pretrial
identification that it should have been excluded................................................... 9

IV. The appellant failed to show that the alleged suggestive procedure gave rise
to a substantial likelihood of irreparable misidentification. ............................. 12

REPLY TO APPELLANT’S SECOND POINT OF ERROR .......................................... 14
I. The jury was properly instructed that it must unanimously agree that the
appellant unlawfully committed a murder while in the course of committing
or attempting to commit a robbery. ........................................................................ 16

II. The appellant was not harmed by any unanimity error in the jury charge. 19

REPLY TO APPELLANT’S THIRD POINT OF ERROR ...............................................21
I. Standard of Review and Applicable Law ............................................................ 21

ii
 II. The evidence is legally sufficient to support the appellant’s conviction for
capital murder. .............................................................................................................. 23

REPLY TO APPELLANT’S FOURTH POINT OF ERROR.......................................... 32
I. Standard of Review and Applicable Law ............................................................ 37

II. The excluded expert testimony was not sufficiently tied to the facts to be
helpful to the jury......................................................................................................... 38

III. The appellant failed to show he was harmed by the limited exclusion of
Terrell’s testimony. ...................................................................................................... 41

CONCLUSION ........................................................................................................................44

CERTIFICATE OF SERVICE AND COMPLIANCE ..................................................... 45

iii
 INDEX OF AUTHORITIES

CASES

Adames v. State,
353 S.W.3d 854 (Tex. Crim. App. 2011) ......................................................................... 21
Aguilar v. State,
468 S.W.2d 75 (Tex. Crim. App. 1971) ............................................................................31
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1985) ......................................................................... 19
Apolinar v. State,
155 S.W.3d 184 (Tex. Crim. App. 2005)......................................................................... 37
Baldree v. State,
248 S.W.3d 224 (Tex. App.—
Houston [1st Dist.] 2007, pet. ref’d) ................................................................................ 38
Ballah v. State,
14-10-00460-CR, 2012 WL 19653 (Tex. App.—
Houston [14th Dist.] Jan. 5, 2012, pet. ref’d) ........................................................ 9, 10, 11
Barley v. State,
906 S.W.2d 27 (Tex. Crim. App. 1995) ............................................................... 11, 12, 14
Bradley v. State,
359 S.W.3d 912 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d) ..............................................................................31
Broussard v. State,
434 S.W.3d 828 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d) .............................................................................42
Brown v. State,
29 S.W.3d 251 (Tex. App.—
Houston [14th Dist.] 2000, no pet.) .............................................................................. 8, 9
Cardenas v. State,
30 S.W.3d 384 (Tex. Crim. App. 2000).......................................................................... 23
Chapman v. State,
150 S.W.3d 809 (Tex. App.—
Houston [14th Dist.] 2004, pet ref’d) .............................................................................42

iv
Clayton v. State,
235 S.W.3d 772 (Tex. Crim. App. 2007) .................................................................. 22, 31
Cook v. State,
884 S.W.2d 485 (Tex. Crim. App. 1994) .......................................................................24
Davis v. State,
313 S.W.3d 317 (Tex. Crim. App. 2010) ..................................................................... 17, 18
Delk v. State,
855 S.W.2d 700 (Tex. Crim. App. 1993) .......................................................................... 8
Denman v. State,
193 S.W.3d 129 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) ............................................................................... 19
Ervin v. State,
333 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d) ................... 26, 27
Ervin v. State,
991 S.W.2d 804 (Tex. Crim. App. 1999) .........................................................................18
Fuentes v. State,
991 S.W.2d 267 (Tex. Crim. App. 1999) ..........................................................................31
Gamboa v. State,
296 S.W.3d 574 (Tex. Crim. App. 2009) ............................................................ 16, 17, 18
Gardner v. State,
306 S.W.3d 274 (Tex. Crim. App. 2009) ..................................................................16, 18
Geesa v. State,
820 S.W.2d 154 (Tex. Crim. App.1991) .......................................................................... 23
Gonzales v. State,
01-00-00916-CR, 2001 WL 1474848 (Tex. App.—
Houston [1st Dist.] Nov. 21, 2001, no pet.) .................................................................... 12
Gonzalez v. State,
337 S.W.3d 473 (Tex. App.—
Houston [1st Dist.] 2011, pet. ref’d) ................................................................................. 23
Guilbeau v. State,
193 S.W.3d 156 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d) ............................................................................... 19

v
Harmon v. State,
167 S.W.3d 610 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) .............................................................................31
Henderson v. State,
825 S.W.2d 746 (Tex. App.—
Houston [14th Dist.] 1992, pet. ref’d) .............................................................................24
Hernandez v. State,
171 S.W.3d 347 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) ..................................................................... 26, 30
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007)............................................................................. 22
Huffman v. State,
267 S.W.3d 902 (Tex. Crim. App. 2008) ........................................................................18
Jackson v. Virginia,
443 U.S. 307 (1979) ........................................................................................................ 21, 32
Johnson v. State,
871 S.W.2d 183 (Tex. Crim. App. 1993) .......................................................................... 22
Jones v. State,
944 S.W.2d 642 (Tex. Crim. App. 1996) ................................................................ 24, 25
Jordan v. State,
928 S.W.2d 550 (Tex. Crim. App. 1996) ........................................................................ 38
Kelly v. State,
824 S.W.2d 568 (Tex. Crim. App. 1992) ........................................................................ 37
Kitchens v. State,
823 S.W.2d 256 (Tex. Crim. App. 1991) ......................................................................... 16
Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009) ........................................................................ 23
Leza v. State,
351 S.W.3d 344 (Tex. Crim. App. 2011) ......................................................................... 26
Lopez v. State,
884 S.W.2d 918 (Tex. App.—
Austin 1994, pet. ref’d) ....................................................................................................... 22
Losada v. State,
721 S.W.2d 305 (Tex. Crim. App. 1986) ..........................................................................31

vi
Loserth v. State,
963 S.W.2d 770 (Tex. Crim. App. 1998) .......................................................................... 8
Manrique v. State,
994 S.W.2d 640 (Tex. Crim. App. 1999) ....................................................................... 25
Martinez v. State,
129 S.W.3d 101 (Tex. Crim. App. 2004) ......................................................................... 16
Mayes v. State,
816 S.W.2d 79 (Tex. Crim. App. 1991) ............................................................................42
Montgomery v. State,
383 SW3d 722 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) ................................................................................. 43
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1990) .................................................................. 37, 40
Morales v. State,
32 S.W.3d 862 (Tex. Crim. App. 2000).................................................................... 37, 38
Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002) .......................................................................... 41
Mouton v. State,
923 S.W.2d 219 (Tex. App.—
Houston [14th Dist.] 1996, no pet.) .................................................................................24
Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005) ......................................................................... 16
Page v. State,
125 S.W.3d 640 (Tex. App.—
Houston [1st Dist.] 2003, pet. ref’d)........................................................................... 11, 12
Paulson v. State,
28 S.W.3d 570 (Tex. Crim. App. 2000).......................................................................... 23
Perry v. State,
703 S.W.2d 668 (Tex. Crim. App. 1986) .......................................................................... 9
Potier v. State,
68 S.W.3d 657 (Tex. Crim. App. 2002) .......................................................................... 41
Powell v. State,
194 S.W.3d 503 (Tex. Crim. App. 2006) ........................................................................ 32

vii
Proctor v. State,
319 S.W.3d 175 (Tex. App.—
Houston [1st Dist.] 2010, pet. struck) ............................................................................ 14
Ray v. State,
178 S.W.3d 833 (Tex. Crim. App. 2005)......................................................................... 41
Reed v. State,
158 S.W.3d 44 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref’d) ............................................................................ 22
Rousseau v. State,
855 S.W.2d 666 (Tex. Crim. App. 1993) .................................................................. 39, 41
Santos v. State,
116 S.W.3d 447 (Tex. App.—
Houston [14th Dist.] 2003, pet. ref’d)........................................................................... 8, 9
Seals v. State,
01-06-00061-CR, 2007 WL 1633776 (Tex. App.—
Houston [1st Dist.] June 7, 2007, no pet.) ...................................................................... 14
Shepherd v. State,
273 S.W.3d 681 (Tex. Crim. App. 2008) ........................................................................ 37
Sholars v. State,
312 S.W.3d 694 (Tex. App.—
Houston [1st Dist.] 2009, pet. ref’d) ............................................................................... 26
Temple v. State,
390 S.W.3d 341 (Tex. Crim. App. 2013) ......................................................................... 22
Tillman v. State,
354 S.W.3d 425 (Tex. Crim. App. 2011)................................................................... 37, 38
Tillman v. State,
376 S.W.3d 188 (Tex. App.—
Houston [14th Dist.] 2012, no pet.) ................................................................................. 43
Tillman v. State,
426 S.W.3d 836 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d) ................................................................................24
Valtierra v. State,
310 S.W.3d 442 (Tex. Crim. App. 2010) ........................................................................ 37

viii
Wallace v. State,
75 S.W.3d 576 (Tex. App.—
Texarkana 2002),
aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003).............................................................. 8, 9
Walters v. State,
247 S.W.3d 204 (Tex. Crim. App. 2007) ....................................................................... 41
Weatherred v. State,
15 S.W.3d 540 (Tex. Crim. App. 2000) .......................................................................... 37
Wyatt v. State,
23 S.W.3d 18 (Tex. Crim. App. 2000)..............................................................................31
Wygal v. State,
555 S.W.2d 465 (Tex. Crim. App. 1977) ........................................................................ 27

STATUTES

TEX. CODE CRIM. PROC. ANN.
art. 36.19 (West 2006) ........................................................................................................ 19
TEX. PENAL CODE § 1.07 (West supp. 2014) .......................................................................24
TEX. PENAL CODE § 6.03(a) (West 2011) .............................................................................24
TEX. PENAL CODE § 7.01(a) (West 2011).............................................................................. 26
TEX. PENAL CODE § 7.02(a)(2) (West 2011) ....................................................................... 26
TEX. PENAL CODE § 7.02(b) (West 2011) ............................................................................ 26
TEX. PENAL CODE § 19.03(a)(2) (West supp. 2014) ......................................................... 23
TEX. PENAL CODE § 29.02(a) (West 2011) .......................................................................... 23

RULES

TEX. R. APP. P. 9.4(g) .................................................................................................................. i
TEX. R. APP. P. 33.1 ...................................................................................................................... 9
TEX. R. APP. P. 39.1 ....................................................................................................................... i
TEX. R. APP. P. 44.2(b)............................................................................................................. 41
TEX. R. EVID. 103 ....................................................................................................................... 41

ix
TEX. R. EVID. 104(a) ................................................................................................................. 37
TEX. R. EVID. 403................................................................................................................ 38, 39
TEX. R. EVID. 702 ....................................................................................................................... 37

x
TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State charged the appellant with capital murder by causing the death of

Ahmad Adnan Issaoui while in the course of committing or attempting to commit

a robbery, and the jury found the appellant guilty (CR – 295; 6 RR 34-35). The

trial court sentenced him in accordance with the jury’s verdict to life without the

possibility of parole in the Texas Department of Criminal Justice, Institutional

Division (CR – 298-99; 6 RR 36-37). The appellant gave timely notice of appeal,

and the trial court certified that he had the right to appeal (CR – 301-2; 6 RR 38).

STATEMENT OF FACTS

During the early morning hours of November 28, 2011, a game room located

at Jim’s Tire Shop was robbed at gunpoint. Luis Trelles (also known as “Tiny”)

worked in the game room as the attendant (4 RR 65-66). When people would

enter the game room, Trelles would have them sign in, assign them a machine, and

give them a “match” for their money (4 RR 66, 71-72). See (St. Ex. #46).

Ahmad Adnan Issaoui worked in the game room as the security officer (4

RR 66-67). As part of his job requirement, Issaoui carried a gun on him while he

worked (4 RR 67-68). Issaoui did not have a gun of his own and borrowed Trelles’

.40 caliber Smith & Wesson revolver during his shifts (4 RR 68).
 That evening, Herb Singleton came in the game room with several friends (4

RR 69-70). Trelles knew Singleton and one of his friends, Edward Broussard, from

around the neighborhood (4 RR 70-71). Singleton did not sign the log sheet, and

Broussard signed in as “Chris” (4 RR 72-73). See (St. Ex. #46). While Singleton and

his friends were playing the machines, Singleton lost his phone and Trelles tried to

help him find it (4 RR 74). Without locating the phone, Singleton and his friends

left the game room, and business slowed down for the evening (4 RR 76). Later,

regular customers Martin and Kim McCoy came in, signed in, received a match,

and began playing (4 RR 18-19, 41, 77). After a while, Singleton returned to the

game room, this time alone, and started playing again (4 RR 20, 42-43, 77). Trelles

noticed that Singleton had a new phone with him and was using it more than

usual (4 RR 77-78).

While Singleton and the McCoys continued to play in the game room,

Trelles went into his office (4 RR 78-82). Trelles heard a loud popping sound that

sounded like a gunshot and heard Issaoui scream (4 RR 82-83). Trelles came out of

his office to see what had happened and encountered the appellant who pointed a

gun directly at him (4 RR 83-84). The appellant asked Trelles where the money

was and told him not to move (4 RR 84). Trelles told the appellant that the money

was in the office; the appellant took around $1,000 from Trelles’ pocket and then

shot him in the leg (4 RR 84-87). The appellant then searched the office for the

2
money and a second gunman held a gun to Trelles’ chest (4 RR 90). Trelles noticed

that both men carried Glocks (semiautomatic weapons) (4 RR 94-96). Trelles

recognized the second gunman as Broussard, whom he had seen in the game room

earlier that evening (4 RR 90). Broussard continued to demand that Trelles give

him the rest of the money and Singleton intervened (4 RR 24, 46, 90-91). Singleton

and Broussard got into an argument about what was going on (4 RR 90-91). At

that point, Broussard and the appellant ran out of the game room (4 RR 91).

Singleton gave Trelles his phone to call the police but then stated, “I got to go” and

left the game room before the police arrived (4 RR 94). The McCoys helped Trelles

with his gunshot wound and waited for the police (4 RR 25-27, 47-48). Martin

McCoy went to check on Issaoui and saw he had been shot in the chest (4 RR 28).

Mario Quintanilla, a Harris County Sheriff’s Homicide Investigator,

responded to the scene (4 RR 174-79). Quintanilla observed that Issaoui was

deceased upon his arrival, and Trelles had been taken to the hospital for a gunshot

wound (4 RR 179-80). Quintanilla noticed that it appeared someone forcefully

removed Issaoui’s gun from his gun belt based on the location of the gun belt on

his body (4 RR 185). See (St. Ex. #18). He received information from the

responding deputies, collected evidence and spoke to witnesses (4 RR 180-81).

Based on surveillance footage, Quintanilla determined that more than the two

gunmen were involved in the robbery (4 RR 191-199). He saw another suspect exit

3
Singleton’s car in the parking lot and get into the getaway vehicle; he then saw

Singleton leave before police arrived (4 RR 197-99).

After speaking with witnesses, including Trelles and Singleton, and

receiving a tip, Quintanilla developed Broussard and the appellant as suspects (4

RR 206-14). Trelles positively identified Broussard and the appellant as the

gunmen (4 RR 143, 223). See (Ex. 72, 102).

Dr. Darshan Phatak, a Harris County Assistant Medical Examiner,

performed an autopsy on Issaoui (5 RR 65-66). Phatak observed that Issaoui had

been shot four separate times at close range: twice in the head and twice in the

abdomen (5 RR 74-77). He determined that Issaoui died from his gunshot wounds

and that the manner of his death was homicide (5 RR 70-71).

SUMMARY OF THE ARGUMENT

The appellant’s failure to object to the in-court identification waived any

possible error. Regardless, the appellant failed to show that the in-court

identification was so tainted by an impermissibly suggestive pretrial identification

that it should have been excluded.

The appellant was not denied a unanimous verdict because the jury was

properly charged on alternate methods of committing the same capital murder

when the same victim was alleged for the predicate murder. Furthermore, the

appellant failed to show harm.

4
 The evidence admitted in this case was legally sufficient to enable a rational

factfinder to find each element of the offense of capital murder, including that the

appellant acted as a principal or a party, giving due deference to the jury’s role as

the factfinder and judge of the credibility of the evidence, and reviewing the record

in the light most favorable to the guilty verdict.

The trial court did not abuse its discretion in excluding limited portions of

the expert’s testimony because the expert failed to sufficiently tie pertinent facts

of the case to the principles that were the subject of his testimony so as to be

helpful to the jury. Furthermore, the appellant failed to show harm.

REPLY TO APPELLANT’S FIRST POINT OF ERROR

In the appellant’s first point of error, he argues that the trial court erred by

allowing Trelles to identify the appellant because the in-court identification was

tainted by an impermissibly suggestive pretrial identification process (App’nt Brf.

9-13). On December 8, Trelles positively identified the appellant from a photo

spread as the gunman who shot him in the leg and took money from his pockets

and office (4 RR 142-43). See (St. Ex. #69, 102). The appellant filed a motion to

suppress this identification, and a hearing was held outside the presence of the

jury (CR – 267-70; 4 RR 59, 113-33).

5
 The hearing revealed that through the course of his investigation,

Quintanilla showed Trelles eight1 different photo spreads containing different

suspects who may have played a role in the robbery; however, Trelles did not

identify a person out of every photo spread shown to him (4 RR 114-15). To create

the photo spreads, Quintanilla placed five other males with similar characteristics

and features and used a computer system to randomize the photos on the array (4

RR 116-17). See (St. Ex. #102).

Before showing him any photo spreads, Quintanilla testified that he gave

Trelles written admonishments (4 RR 107-8). See (St. Ex. #62). These

admonishments informed Trelles that he would be asked to look at a group of

photographs and admonished him that: (1) the fact that the photographs were

being shown to him should not influence his judgment; (2) he should not conclude

or guess that it contain a picture of the person who committed the crime; (3) he

was not obligated to identify anyone; (4) it was just as important to clear innocent

people as to identify the perpetrator; and (5) he was not to tell anyone that he

made an identification (4 RR 107-8, 117-18). See (St. Ex. #62). Quintanilla testified

that Trelles understood those admonishments (4 RR 108, 117-18). See (St. Ex. #62).

Trelles testified that was given the admonishments, and no evidence was

1
The appellant only objected to the photo spreads that contained his photo and had no
objection the other photo spreads admitted (4 RR 106-13, 134-44). See (St. Ex. # 49-50, 62-67,
70-72).

6
presented that he did not understand the admonishments (4 RR 106). See (St. Ex.

#62).

When Quintanilla showed the appellant the photo spread containing the

appellant he testified that he sat across from Trelles, that he did not look at the

photographs at the same time as Trelles, and that did not give him any indication

as to whom he should pick (4 RR 118, 121). Quintanilla testified that he did not

indicate to Trelles in any way which photo was the target (4 RR 118-19). He stated

that Trelles only looked at the photo spread for a second before he made the

identification and stated, “[t]hat’s the guy that shot me in the leg.” (4 RR 122).

Trelles testified that he was “pretty positive,” “99.9%” sure that he identified the

right person (4 RR 132-33).

The trial court denied the appellant’s motion to suppress the pre-trial

identification (4 RR 126-27). The trial court found that the photo spread

compilation was properly done and that the photo spread procedure was not

impermissibility suggestive such that a misidentification could have occurred (4

RR 126, 129, 133). During trial, Trelles identified the appellant in front of the jury

as the person who shot him in the leg without objection (4 RR 143).

I. Standard of Review and Applicable Law
An in-court identification is inadmissible when it has been tainted by an

impermissibly suggestive pretrial photo spread. Brown v. State, 29 S.W.3d 251, 254

7
(Tex. App.—Houston [14th Dist.] 2000, no pet.) (citing Loserth v. State, 963 S.W.2d

770, 773 (Tex. Crim. App. 1998)). The admissibility of an identification is a mixed

question of law and fact that appellate courts reviews de novo. Id. A reviewing court

employs a two-step analysis: (1) determining whether the pretrial procedure was

impermissibly suggestive, and if so, (2) whether the suggestive pretrial procedure

gave rise to a very substantial likelihood of irreparable misidentification. Delk v.

State, 855 S.W.2d 700, 706 (Tex. Crim. App. 1993) (noting that the appellant has

the burden to show that the in-court identification is unreliable by proving both

these elements by clear and convincing evidence); Santos v. State, 116 S.W.3d 447,

451 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d). An analysis of these two

steps requires a reviewing court to examine the totality of the circumstances

surrounding the particular case. Wallace v. State, 75 S.W.3d 576, 584 (Tex. App.—

Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003).

II. The appellant failed to preserve his complaint regarding
Trelles’ in-court identification for appellate review.
The appellant contends that the in-court identification was unduly tainted

by the suggestive pretrial identification procedures. (App’nt Brf. 13). But the

appellant failed to object to Trelles’ in-court identification, instead objecting only

to the pretrial photographic identification (4 RR 143). The failure of the appellant

to complain or object in trial to the in-court identification waives any complaint

8
regarding the in-court identification on appeal. Perry v. State, 703 S.W.2d 668, 671

(Tex. Crim. App. 1986); Ballah v. State, 14-10-00460-CR, 2012 WL 19653, at *2 (Tex.

App.—Houston [14th Dist.] Jan. 5, 2012, pet. ref’d) (mem. op., not designated for

publication); see also TEX. R. APP. P. 33.1; Wallace, 75 S.W.3d at 584 (“An objection to

the array does not preserve for appellate review any complaint regarding the in-

court identification.”). Thus, the appellant’s first point of error should be

overruled.

III. Even if the issue was preserved, the appellant failed to show
that the in-court identification was so tainted by an
impermissibly suggestive pretrial identification that it
should have been excluded.
The appellant argues that the content of the photo spread was

impermissibly suggestive (App’nt Brf. 10-11). See Santos, 116 S.W.3d at 451 (noting

that either the manner or the content of a pretrial identification procedure may

render the identification impermissibly suggestive). A photo spread is considered

impermissibly suggestive if the other lineup participants are greatly dissimilar in

appearance from the suspect. Brown, 29 S.W.3d at 254. But minor discrepancies

between participants will not render a photo spread impermissibly suggestive, and

the participants need not be identical to satisfy the requirements of due process.

Id.

9
 Here, all six individuals in the photo spread containing the appellant were

black males with similar characteristics and features; each had short black hair

and some facial hair (4 RR 116). See (St. Ex. #69, 102). All six pictures were taken

from the front against a plain background. See (St. Ex. #69, 102). It is not possible

to determine the heights of the individuals from the photographs; thus, height

does not distinguish the appellant. See (St. Ex. #69, 102). Nothing about the

appellant’s clothing differentiates him from the other participants; he is not

wearing the attire Trelles described him in on the night of the offense. See (St. Ex.

#69, 102). And nothing about the darkness of several photographs differentiates

the appellant from the other men pictured. See (St. Ex. #69, 102).

Moreover, although the appellant does not appear to complain about the

manner in which Quintanilla showed Trelles the photo spread on appeal, it was

properly administered. As previously stated, Trelles read and signed an

admonishment form, indicating that he understood the directions (4 RR 107-8,

117). See (St. Ex. #62). The testimony showed that Quintanilla did not indicate to

Trelles that a suspect was included in the photo spread, nor did he suggest which

individual to choose (4 RR 113-19). Furthermore, Trelles testified that he chose the

appellant almost immediately (4 RR 157). Therefore, the photo spread was not

impermissibly suggestive. See Ballah, 2012 WL 19653 at *3 (finding a photo spread

was not impermissibly suggestive even though the appellant and another male

10
were wearing plain white T-shirts and all four other men are wearing different

clothing, including one who is not wearing a shirt and even though some

photographs were darker than others).

The appellant argues that the photo spread content was impermissibly

suggestive because three participants had visibly darker complexions than the

appellant. (App’nt Brf. 9-11). But this concern was cleared up with the admission

of State’s Exhibit 102 and by Quintanilla’s testimony that the exhibit was a copy of

the original (4 RR 123-25). See (St. Ex. #69, 102). Quintanilla explained that it was

a copying issue and that the original photo spread, State’s Exhibit 102, that he

showed Trelles was “a whole lot lighter” (4 RR 124).

Even if some photographs were darker than others, the variations in the

lighting of the photographs were minimal, with three photos only slightly darker.

And “[s]light differences in the background color and brightness of photographs

are insignificant.” Page v. State, 125 S.W.3d 640, 647 (Tex. App.—Houston [1st

Dist.] 2003, pet. ref’d); Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim. App. 1995)

(holding that photographic array containing two “older and faded” photographs

and photograph “obviously taken in a different setting” not impermissibly

suggestive). Nothing about the darkness of the photographs differentiates the

appellant from the other men pictured. See id.; Ballah, 2012 WL 19653 at *4.

11
 The appellant complains that his tattoos were visible on his neck and hands,

and only one other subject had visible tattoos. (App’nt Brf. 11). But a photo spread

is not “impermissibly suggestive merely because each photograph can be

distinguished in some manner from the photograph of the accused.” Page, 125

S.W.3d at 647. Additionally, he was not the only one shown with this distinctive

feature; another individual had neck tattoos. See (St. Ex. #69, 102); see also Gonzales

v. State, 01-00-00916-CR, 2001 WL 1474848, at *2 (Tex. App.—Houston [1st Dist.]

Nov. 21, 2001, no pet.) (not designated for publication) (holding photo spread not

impermissibly suggestive when only the appellant and one other individual had

neck tattoos). Thus, the photo spread was not impermissibly suggestive.

IV. The appellant failed to show that the alleged suggestive
procedure gave rise to a substantial likelihood of irreparable
misidentification.
Courts consider five different factors to determine the likelihood of

irreparable misidentification: (1) the opportunity to view the criminal at the time

of the crime; (2) the witness’ degree of attention; (3) the accuracy of the witness’s

prior description of the criminal; (4) the level of certainty demonstrated by the

witness at the confrontation; and (5) the length of time between the crime and

confrontation. Barley, 906 S.W.2d at 34-35.

Here, Trelles had a good opportunity to view the appellant at the time of the

robbery. He testified that the gunman who shot him wore nothing to cover his face

12
and that the encounter “felt like an eternity” (4 RR 84, 156-57). Although he later

stated the encounter was more likely a few minutes, he was persistent that he was

able to recognize the appellant immediately (4 RR 156-57). And it is clear from his

testimony that Trelles’ attention was focused on the appellant and then on

Broussard after the appellant shot him.

Trelles’ description of the appellant was accurate. He told police that the

man who shot him was a black male with not particularly dark skin, about 6 foot 1

inch tall and weighed about 160 pounds (4 RR 152-53, 235-36). He also testified

that he told the police that the gunman was wearing a hoodie (4 RR 101-3, 153-56).

While there were some differences in his description and testimony, Trelles

explained that he saw the person who shot him when he stood over him and “was

sure of it” (4 RR 153-57). Trelles testified that he thought he had told police about

the facial hair and tattoos (4 RR 153-57). And he clarified that the appellant’s

hoodie was down, which is how he saw his face and was able to identify him (4

RR 153-54).

Furthermore, Quintanilla testified that Trelles immediately identified the

appellant after being shown the photo spread (4 RR 116-19, 222). Trelles testified

that he immediately recognized the appellant in the photo spread as the gunman

who shot him and he was 99.9% sure of his choice (4 RR 157). Also, Trelles had

13
viewed prior photo spreads that did not contain the appellant’s photo and was

unable to identify anyone in them as the shooter (4 RR 113-34).

Finally, although the trial did not occur until nearly four years after the

crime, Trelles made his identification of the appellant on the photo spread a little

over a week after the robbery (4 RR 113-26). See Proctor v. State, 319 S.W.3d 175, 185

(Tex. App.—Houston [1st Dist.] 2010, pet. struck) (noting a month between the

murder and an identification on a photo spread did not give rise to a substantial

likelihood of irreparable misidentification). Thus, the factors weigh in favor of the

trial court’s ruling to admit the identification evidence. See Barley, 906 S.W.2d at

33; Seals v. State, 01-06-00061-CR, 2007 WL 1633776, at *3 (Tex. App.—Houston

[1st Dist.] June 7, 2007, no pet.) (mem. op., not designated for publication).

Therefore, the appellant failed to show that, even if the photo spread was

suggestive that it gave rise to a very substantial likelihood of irreparable

misidentification. The appellant’s first point of error should be overruled.

REPLY TO APPELLANT’S SECOND POINT OF ERROR

In the appellant’s second point of error, he argues that the trial court erred

in allowing the jury to reach a non-unanimous verdict. (App’nt Brf. 8, 13-19).

Specifically, the appellant complains about allowing the jury to find the appellant

guilty of capital murder while committing or attempting to commit the robbery of

either Trelles or Issaoui. The appellant argues that the robbery of Trelles was a

14
separate offense from the robbery and of Issaoui. (App’nt Brf. 19). But this

argument lacks merit.

Prior to jury selection, the appellant objected to the State presenting two

theories of capital murder to the jury and asked for the State to be required to

choose between whether the murder occurred within the course of committing a

robbery or attempting to commit a robbery of either Trelles or Issaoui (2 RR 3-4).

The trial court overruled the objection (2 RR 4). During the charge conference, the

appellant again objected stating:

[W]e also object to the charge to the jury in the disjunctive based on
an indictment that was actually pled in the conjunctive. The State
should be required – we’re asking the Court to require them at this
time to elect between the two offenses in the charge, specifically that
the defendant committed the aggravated robbery of Luis Trelles or
the aggravated robbery of Ahmad Issaoui. Since these are two
separate offenses with two separate victims, committed by separate
suspects, this could result in a non-unanimous verdict by this jury
where several jurors think he's guilty of one and several of the other
and it's not unanimous as to one or the other. So, we are objecting to
the Court charging in this form.

(4 RR 4). The State responded that, based on case law, there did not need to be an

agreement as to who the victim of the underlying robbery was in order for the

verdict to be unanimous (4 RR 4-5). The trial court overruled the appellant’s

objection (4 RR 5).

15
 The trial court charged the jury that it should find the appellant guilty of

capital murder, either on his own or as a party, as charged in the indictment, if it

found from the evidence beyond a reasonable doubt that:

[O]n or about the 28th day of November, 2011, in Harris County,
Texas, the defendant, Darrell Dwayne Broussard, did then and there
unlawfully, while in the course of committing or attempting to
commit the robbery of Ahmad Adnan Issaoui or Luis Trelles,
intentionally cause the death of Ahmad Adnan Issaoui by shooting
Ahmad Adnan Issaoui with a deadly weapon, namely a firearm...

(CR – 287-90). The jurors were further instructed to certify their verdict only

after they “have unanimously agreed upon a verdict,” and they did reach a

unanimous verdict (CR – 293-95).

I. The jury was properly instructed that it must unanimously
agree that the appellant unlawfully committed a murder
while in the course of committing or attempting to commit
a robbery.

A unanimous verdict is required in all felony cases. Ngo v. State, 175 S.W.3d

738, 745 (Tex. Crim. App. 2005). The unanimity requirement is not violated by

instructing the jury on alternative theories of committing the same offense. Kitchens

v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991); Martinez v. State, 129 S.W.3d

101, 103 (Tex. Crim. App. 2004). This applies equally to alternate underlying

offenses for capital murder, “so long as the same victim is alleged for the predicate

murder.” Gamboa v. State, 296 S.W.3d 574, 584 (Tex. Crim. App. 2009); Gardner v.

State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009) (noting that the gravamen of

16
capital murder is intentionally causing a death, plus any one of various different

types of aggravating elements). “Nothing prohibits a single capital murder from

containing alternate underlying offenses that are the same statutory offense but with

different victims or different underlying methods of commission, so long as the same victim is

alleged with respect to the predicate murder.” Davis v. State, 313 S.W.3d 317, 342

(Tex. Crim. App. 2010) (emphasis added).

Here, the State charged the appellant with murder of one victim, Issaoui

(CR – 22, 289). Because the appellant intentionally caused the death of Issaoui

while in the course of committing or attempting to commit a robbery, the State

properly charged the appellant with the capital murder of Issaoui (CR – 289-90).

Davis, 313 S.W.3d at 343. Although the State alleged two different victims to the

underlying robbery, the Court of Criminal Appeals explained in Davis that a jury

need not agree on which underlying offense the defendant was in course of

committing when he murdered a particular victim because each underlying offense

is merely a different manner and means of committing the same capital murder

(CR – 289-90). Id. (holding that appellant not denied a unanimous verdict when

the jury was allowed to convict him of capital murder by burglary of a habitation

based on theft of one victim or burglary of a habitation based on sexual assault of a

second victim). Thus, the jury charge did not deny the appellant a right to a

unanimous verdict. See Gamboa, 296 S.W.3d at 584 (holding that appellant not

17
denied a unanimous verdict when the jury was allowed to convict appellant of

capital murder by committing a murder while in the course of committing a

robbery or another murder).

The appellant attempts to distinguish Gamboa, arguing that the robbery of

Issaoui was a separate transaction from the robbery of Trelles. (App’nt Brf. 17-18).

But this argument lacks merit. A reviewing court does not look to the sufficiency

of the evidence to determine what elements and facts a jury must unanimously

agree on, but rather the gravamen of the offense in question. See Davis, 313 S.W.3d

at 342; Gamboa, 296 S.W.3d at 583-84. And the gravamen of capital murder is

intentionally causing the death of a person plus an aggravating element. Gardner,

306 S.W.3d at 302; Gamboa, 296 S.W.3d at 583-84. Courts have consistently held

that, with respect to homicide offenses, that different legal theories involving the

same victim are simply alternate methods of committing the same offense. Davis,

313 S.W.3d at 342; Gamboa, 296 S.W.3d at 583-84; Huffman v. State, 267 S.W.3d 902,

905-907 (Tex. Crim. App. 2008); Ervin v. State, 991 S.W.2d 804 (Tex. Crim. App.

1999). Thus, the jury was properly instructed. The appellant’s second point of

error should be overruled.

18
 II. The appellant was not harmed by any unanimity error in
the jury charge.
The Court of Criminal Appeals set out the harm analysis for an error in the

jury charge in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The

Almanza analysis does not apply, however, unless this Court first determines that

there is any error in the jury charge. Guilbeau v. State, 193 S.W.3d 156, 161 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d). And as previously stated, the trial

court did not violate appellant’s right to a unanimous verdict by failing to order

the State to elect a single victim to the underlying felony upon which to base its

capital murder case.

Nevertheless, if this Court finds error in the charge, it must determine

whether there was a proper objection to the charge and, if so, determine the harm

by examining the “entire jury charge, the state of the evidence, including the

contested issues and weight of probative evidence, the argument of counsel and

any other relevant information revealed by the record of the trial as a whole.” Id.

The degree of harm that must be present to require reversal of a case depends upon

whether the error was preserved or unpreserved. Denman v. State, 193 S.W.3d 129,

134 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); TEX. CODE CRIM. PROC. ANN.

art. 36.19 (West 2006). Here, because there was a trial objection, reversal is

required if the error is “calculated to injure the rights of the defendant,” defined to

mean that there is “some harm.” Almanza, 686 S.W.2d at 171.

19
 The remainder of the jury charge was correct. And the state of the evidence

was in favor of a conviction. Trelles testified that the appellant was the one who

shot him in the leg after demanding to know where the money was located (4 RR

101-3, 143, 223). He stated that he was “99.9%” sure when he identified the

appellant, and his initial description to police closely described the appellant (4

RR 153-57). Quintanilla testified that Trelles identified the appellant in the photo

spread immediately (4 RR 222-23). Additionally, Trelles and the McCoys testified

that immediately after Issaoui was shot, the gunman pointed the gun towards

Trelles and demanded money (4 RR 20-21, 44-45, 83-87). Trelles testified that the

gunmen took money from the office and his pockets and that he feared for his life

(4 RR 86-87). Quintanilla testified it appeared that the gun Issaoui was carrying

that evening had been taken by force (4 RR 185). Moreover, the ballistics evidence

confirmed that the gunmen used semiautomatic weapons, most likely Glocks (4

RR 95; 5 RR 19-34).

Furthermore, the appellant’s defense was not predicated on isolating one

robbery from another but rather on the lack of evidence to prove that he

committed the crime at all. The appellant presented an expert to dispute Trelles’

testimony as unreliable and presented Tanya Fisher to establish that someone else

may have been responsible for the crime (5 RR 89-140, 145-62). The appellant

argued that the only evidence linking him to the murder was Trelles’

20
identification, focusing on the lack of DNA and fingerprints (6 RR 14-15).

Therefore, the appellant cannot show that he was harmed by any error in the jury

charge, and his second point of error should be overruled.

REPLY TO APPELLANT’S THIRD POINT OF ERROR

In the appellant’s third point of error, he argues that that the evidence

presented in his case was legally insufficient to convince any rational factfinder

beyond a reasonable doubt that he committed the offense of capital murder.

(App’nt Brf. 19-25).

I. Standard of Review and Applicable Law
Every criminal conviction must be supported by legally sufficient evidence

that each element of the offense is proven beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 315 (1979); Adames v. State, 353 S.W.3d 854, 853 (Tex. Crim.

App. 2011). In order to determine whether this standard has been met, an appellate

court reviews all the evidence in the light most favorable to the verdict and decides

whether, based on that evidence and reasonable inferences, a rational factfinder

could have found each essential element of the crime beyond a reasonable doubt.

Jackson, 443 U.S. at 319 (finding that “the relevant question is whether, after

viewing the evidence in light most favorable to the prosecution, any rational trier

of fact could have found the essential elements of the crime beyond a reasonable

doubt.”) (emphasis in original); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim.

21
App. 2013); Reed v. State, 158 S.W.3d 44, 46 (Tex. App.—Houston [14th Dist.] 2005,

pet. ref’d). This applies equally to the analysis of direct or circumstantial evidence

in the record. Reed, 158 S.W.3d at 47.

Circumstantial evidence alone can be sufficient to establish guilt, and is

analyzed the same as direct evidence in the record. Temple, 390 S.W.3d at 359 (“A

criminal conviction may be based upon circumstantial evidence.”); Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (noting “[c]ircumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor” and that

“circumstantial evidence alone can be sufficient to establish guilt.”); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (same). Not every fact has to point to

the defendant’s guilt, rather “it is enough if the conclusion is warranted by the

combined and cumulative force of all the incriminating circumstances.” Temple, 390

S.W.3d at 359 (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993));

see Clayton, 235 S.W.3d at 778. When conflicts appear in the record a reviewing

court must presume the trier of fact resolved the conflict in favor of the verdict and

should defer to that resolution. Id. at 360.

The jury’s role is to “weigh the evidence, to judge the credibility of the

witnesses, and to choose between the conflicting theories of the case.” Lopez v.

State, 884 S.W.2d 918, 921 (Tex. App.—Austin 1994, pet. ref’d) (citing Geesa v. State,

22
820 S.W.2d 154, 159 (Tex. Crim. App.1991) (overruled in part on other grounds by

Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000))); see also Gonzalez v. State, 337

S.W.3d 473, 480 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (finding a

rational juror could believe the appellant sexually assaulted the complainant in

resolving conflicting testimony between what the complainant testified to and

what she told the sexual-assault-examination nurse)

This Court’s role is not to simply compare an appellant’s analysis of the

evidence against the State’s analysis of the same evidence. Cardenas v. State, 30

S.W.3d 384, 389 (Tex. Crim. App. 2000). Rather, this Court must uphold the

verdict unless a factfinder does not act rationally. Laster v. State, 275 S.W.3d 512,

517-518 (Tex. Crim. App. 2009) (stating this Court’s role is to guard against this

“rare occurrence” where a jury acts irrationally).

II. The evidence is legally sufficient to support the appellant’s
conviction for capital murder.
The jury concluded beyond a reasonable doubt that on or about November

28, 2011, the appellant, either as a principal or a party, unlawfully, while in the

course of committing or attempting to commit the robbery of Issaoui or Trelles,

intentionally caused the death of Issaoui by shooting Issaoui with a deadly

weapon, namely a firearm (CR – 285-95). TEX. PENAL CODE § 19.03(a)(2) (West

supp. 2014); see also TEX. PENAL CODE § 29.02(a) (West 2011) (A person commits

robbery if, in the course of committing theft and with intent to obtain or maintain

23
control of the property, he intentionally, knowingly, or recklessly causes bodily

injury to another, or intentionally or knowingly threatens or places another in fear

of imminent bodily injury or death). The record contains evidence from which the

jury could rationally find each element of capital murder beyond a reasonable

doubt.

A person acts intentionally, or with intent, with respect to a result of his

conduct when it is his conscious objective or desire to cause the result. TEX. PENAL

CODE § 6.03(a) (West 2011); Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App.

1994) (noting that murder is a result-oriented offense). A defendant’s intent is

most often proven through the circumstantial evidence surrounding the crime.

Mouton v. State, 923 S.W.2d 219, 223 (Tex. App.—Houston [14th Dist.] 1996, no

pet.) (citing Henderson v. State, 825 S.W.2d 746, 749 (Tex. App.—Houston [14th

Dist.] 1992, pet. ref’d)). The jury may infer the requisite intent from a defendant’s

acts, words and conduct, as well as, the method of committing the crime. Mouton,

923 S.W.2d at 223; Tillman v. State, 426 S.W.3d 836, 842 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d) (citing Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App.

2004)). Intent can also be inferred from the use of a firearm. See Jones v. State, 944

S.W.2d 642, 647 (Tex. Crim. App. 1996) (holding “the jury may infer the intent to

kill from the use of a deadly weapon unless it would not be reasonable to infer that

death or serious bodily injury could result from the use of the weapon”); TEX.

24
PENAL CODE § 1.07 (West supp. 2014) (defining a deadly weapon as a firearm or

anything manifestly designed, made, or adapted for the purpose of inflicting death

or serious bodily injury); see also Manrique v. State, 994 S.W.2d 640, 649 n. 1 (Tex.

Crim. App. 1999) (Meyers, J. concurring) (noting that the inference of intent to

kill is almost conclusive when a deadly weapon is used in a deadly manner, but

when weapon not dangerous or not used in deadly manner, further evidence is

needed).

Here, the evidence showed that Issaoui’s cause of death was multiple

gunshot wounds (5 RR 70). Phatak testified that Issaoui suffered four separate

gunshot wounds: two to the head and two to his body (4 RR 74-75). See (St. Ex.

77). Phatak explained that, based on the evidence of soot and stippling on the

body, Issaoui was shot at very close range; in one location between two to six

inches away, in the second location between three and four feet away, and the

third and fourth locations indicated that the muzzle of the gun would have been

up against the fabric of Issaoui’s clothes before it was fired (5 RR 76-83).

Additionally, Roy Glover, a CSU, testified that the bullet found under Issaoui was

flat, which indicated that the shooter was over the victim when the gun was fired

(3 RR 196). See (St. Ex. #20). Thus, the evidence was sufficient to show intent to

kill. See Jones, 944 S.W.2d at 647; Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—

25
Houston [1st Dist.] 2009, pet. ref’d) (“When a deadly weapon is fired at close

range, and death results, the law presumes an intent to kill.”).

The evidence was sufficient for the jury to find the appellant guilty as a

principal actor or under some theory of party liability (CR – 289-94). See Leza v.

State, 351 S.W.3d 344, 357 (Tex. Crim. App. 2011) (noting that when the evidence

shows that the appellant is guilty, either as a principal or a party, but his precise

role in that offense was unclear, a jury is not required to unanimously determine

what his exact party accountability might be). Under the law of parties, the jury

could have found the appellant guilty of capital murder if it concluded that the

murder was committed by his own conduct, by the conduct of another for which

he was criminally responsible, or in an attempt to carry out a conspiracy to

commit robbery, the murder was committed in furtherance of that robbery and

should have been anticipated. See TEX. PENAL CODE §§ 7.01(a), 7.02(a)(2); 7.02(b)

(West 2011); Ervin v. State, 333 S.W.3d 187, 200 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d).

When, as here, a jury returns a general verdict and the evidence is sufficient

to support a guilty finding under any of the allegations submitted, the verdict

should be upheld. Hernandez v. State, 171 S.W.3d 347, 353 (Tex. App.—Houston

[14th Dist.] 2005, pet. ref’d). In determining whether the appellant was a party to

the offense, a reviewing court examines the events before, during and after the

26
commission of the offense. See Ervin, 333 S.W.3d at 200. And an agreement between

parties to act together in common design can be shown by direct or circumstantial

evidence. Id; see Wygal v. State, 555 S.W.2d 465, 469 (Tex. Crim. App. 1977)

(circumstantial evidence is sufficient to show guilt as a party).

Here, Trelles testified that when he was working in the game room with

Issaoui during the early morning hours of November 28 when two gunmen entered

and demanded money (4 RR 83-87). Trelles was able to identify both gunmen. He

stated that neither gunman wore anything to cover their face or hands (4 RR 84).

As previously discussed, Trelles positively identified the appellant as the gunman

who first held a gun to him, demanded money, and later shot him in the leg (4 RR

142-43). See (St. Ex. #69, 102). His initial description to police was accurate, and

the record reflected that Trelles immediately identified the appellant in a photo

spread a week after the robbery after not identifying anyone in previous photo

spreads that did not contain the appellant’s photo (4 RR 101-3, 113-14, 152-53, 235-

36).

Additionally, Trelles testified that he recognized the second gunman “very

well” as Edward Broussard, someone he knew before the robbery and Trelles

positively identified him in a photo spread (4 RR 90, 135-40). See (St. Ex. 65, 66).

Moreover, Trelles explained that he had seen Broussard earlier that evening when

27
he had been in the game room with some other friends, including Trelles’ friend

Singleton (4 RR 69-75).

The evidence established that the appellant acted pursuant to a common

course or scheme. Trelles testified that he heard gunshots come from the location

where Issaoui was sitting (4 RR 66-67, 70, 77, 82-83). He stated that immediately

after hearing the shots he exited his office and was faced with a gun (4 RR 82-84).

Trelles described that both gunmen used semiautomatic weapons, different from

the revolver Issaoui carried that evening (4 RR 95-96). Both Kim and Martin

McCoy testified that they heard a gunshot from the front door area of the game

room where Issaoui was sitting and saw a man pointing a gun at Trelles,

demanding money (4 RR 20-21, 44-45). Trelles testified that the appellant and

Broussard both demanded money from him while holding him at gun point (4 RR

83-87). From Trelles’ testimony, it was clear the appellant and Broussard were

working together.

Additionally, circumstantial evidence revealed that at least Broussard and

Singleton had gone to the game room earlier that evening, likely to case it before

the robbery (4 RR 69-77). Trelles testified that Broussard used the alias “Chris”

when he signed the log sheet and Singleton did not sign it at all (4 RR 72-73). He

stated that at some point Singleton lost his phone and that he never found it

before leaving with the group (4 RR 73-77). When Singleton returned to the game

28
room for the second time, this time alone, Trelles noticed that he had a different

phone and that he was using it a lot more than usual (4 RR 77-78). Trelles testified

that Singleton intervened after the appellant shot him and Broussard pointed a

gun at him; he described that Broussard and Singleton got into an argument about

what was happening (4 RR 90-91).

Trelles saw the appellant and Broussard leave in the same vehicle and

testified that Singleton left shortly thereafter before police arrived (4 RR 92-94).

Surveillance videos from surrounding businesses corroborated Trelles’ testimony;

one video showed a fourth suspect leave Singleton’s car during the robbery and sit

in the getaway vehicle before the appellant and Broussard drove away (4 RR 191-

96). See (St. Ex. #73-74).

Moreover, based on the appellant’s demands for money and the items taken,

the evidence showed that the agreement between the parties was to commit a

robbery. Multiple witnesses heard the gunmen demand money from Trelles (4 RR

20-21, 85-87). Trelles stated that the appellant took $1,500 from his office and

$1,000 from his pocket (4 RR 85-87). Additionally, the evidence showed that the

revolver Issaoui had been carrying that evening was forcibly removed from his gun

holster, and the watch he always wore was located off of his wrist on the floor

near his body (4 RR 68, 185-86, 188-89; 5 RR 12-14). It also appeared that Issaoui’s

ring was taken from his finger (5 RR 13-14, 85).

29
 Furthermore, the evidence was sufficient to show that as a party to the

offense the appellant should have anticipated someone could die in furtherance of

the robbery based on the use of firearms. Trelles testified that both the appellant

and Broussard held him at gunpoint with semiautomatic firearms, and he

described how the appellant shot him in the leg (4 RR 87-96). The ballistics

evidence corroborated Trelles’ testimony (4 RR 94-96; 5 RR 33-37). See (St. Ex.

#8). Jennifer Turner, a firearms expert, testified that the four casings that she

tested from the scene were likely all fired from the same firearm, a semiautomatic

pistol (5 RR 27-34). See (St. Ex. #8, 36-39). Therefore, the record reflects that that

the appellant, acting with others, entered the game room with the intent to

commit a robbery pursuant to one scheme or continuing course of conduct and

Issaoui was intentionally killed in furtherance of that scheme. The appellant

should have anticipated that when committing a robbery with firearms that

someone could be shot and killed. See Hernandez, 171 S.W.3d at 354-55. Thus, the

evidence was sufficient to support the jury’s verdict. See id. (holding that the

evidence was sufficient to convict appellant of capital murder under the law of

parties when physically present at the commission of the offense and encouraged

its commission by words or other agreement).

The appellant argues that party liability theory depends on proof that he

was a part of the offense and that Trelles’ identification alone was insufficient to

30
connect him to the capital murder. (App’nt Brf. 22-25). But the testimony of a

single eyewitness can be enough to support a conviction. Bradley v. State, 359

S.W.3d 912, 917 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d) (citing Aguilar v.

State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971)). As the sole judge of the credibility

of the witnesses, the jury weighed the evidence and was free to find guilty without

other physical evidence – like DNA or fingerprints – linking the appellant to the

crime. Id.; Harmon v. State, 167 S.W.3d 610, 614 (Tex. App.—Houston [14th Dist.]

2005, pet. ref’d).

Finally, to the extent that the appellant argues that the eyewitness expert

he presented, Trent Terrell, negated Trelles’ identification, the jury was free to

believe this testimony or not. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App.

2000) (noting “reconciliation of conflicts in the evidence is within the exclusive

province of the jury.” (quoting Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App.

1986)); Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999) (stating that

trier of fact is sole judge of credibility of eyewitnesses and strength of evidence).

Reviewing the record in the light most favorable to the jury’s verdict, there

is sufficient evidence for a rational trier of fact to have concluded beyond a

reasonable doubt that the appellant was guilty of each element of capital murder.

See Clayton, 235 S.W.3d at 778-79 (noting that when a record supports conflicting

inferences, a reviewing court presumes that the factfinder resolved the conflict in

31
favor of their verdict); Powell v.State, 194 S.W.3d 503, 508 (Tex. Crim. App. 2006);

Jackson, 443 U.S. at 319. The appellant’s third point of error should be overruled.

REPLY TO APPELLANT’S FOURTH POINT OF ERROR

In the appellant’s fourth point of error, he argues that the trial court erred in

limiting portions of is expert’s testimony regarding the reliability of eyewitness

identification. (App’nt Brf. 25-27). The appellant presented Terrell, a psychology

professor, as an expert to testify to the possible unreliability of eyewitness

testimony (5 RR 89-140). After several objections by the State regarding what

Terrell based his testimony upon, a hearing outside of the presence of the jury was

held (4 RR 96-99). The following exchange occurred:

DEFENSE COUNSEL: Back to the question. Witnesses to real life
crimes make the same kinds of mistakes as experimental participants.
Okay?

TERRELL: Yes.

STATE: And I object to that. It’s a conclusion with no foundation laid
beforehand.

COURT: Overruled. Let’s see what he has to say.

DEFENSE COUNSEL: Okay.

TERRELL: Do you want me –

DEFENSE COUNSEL: Are you basing your information on things –
exonerations from the Innocence Project?

TERRELL: Yes.

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 DEFENSE COUNSEL: Okay. Explain what the Innocence Project is.

TERRELL: Innocence Project is a group that advocates for convicted
felons who are incarcerated to have the ability to petition to have
their DNA tested in the hopes that it will exonerate them in the
crimes that they’ve been committed for. The reason I didn’t call them
studies is because they’re not really studying this. They are just
documenting that this has occurred. There have been over 300
exonerations in the United States based on DNA evidence that was
produced after the fact. In around 75% of these – and I say around
because they’re being added daily and percentages fluctuate. Around
75% of these exonerated convictions were based at least in part on
erroneous eyewitness identifications.

(5 RR 99-100). In his argument to the court regarding the admissibility of this

testimony, the appellant argued:

I think we’re allowed to go into that because the State said during
jury selection that it’s a minuscule amount of cases that this has
happened in. So, I’m trying to show that there’s 300 cases that have
been exonerated that they know of now.

(5 RR 100-101). The State responded that the number was disingenuous without

requiring Terrell to “produce a list of each and every one of the exonerations that

he’s claiming is, in fact, an exoneration based on both DNA and in part [o]n

eyewitness testimony that he could then be cross-examined on” and argued that it

was not relevant to whether the eyewitness identification in the current case was

done properly (5 RR 101). Ultimately, the trial court held that Terrell could testify

to any experiments that he was personally involved in or studies he had used in his

field, but sustained the State’s objection to a discussion about the Innocence

33
Project and numbers of exonerations nationwide because there were too many

variables for why someone may be exonerated (5 RR 101-104).

At the trial court’s suggestion, Terrell went on to describe the studies he

had conducted regarding a “simulated crime or simulated event” outside of the

presence of the jury (5 RR 105-106). When asked about the results, Terrell stated,

“[M]any of the participants make errors. And depending on the variables

introduced, the amount of errors fluctuate, but there are always a number of

participants in any study who fail to make a correct identification.” (5 RR 106).

The following exchange occurred regarding those error rates:

DEFENSE COUNSEL: Do you have percentages?

TERRELL: It’s difficult to get into percentages because all crime
scenarios are different, and really what we do in our experiments is
we work off of baselines. We have a control group in which certain
things have happened, and then we modify a variable to see if the
correct rate of identification goes up or down. So, it’s really a
departure from that baseline percentage. So, truthfully, no, I don’t
because the baseline percentage varies considerably, depending on
how long the exposure was, how clear the video was, a number of
factors. So, when we’re talking about modifying the reliability of
identifications, we’re talking about a departure from that established
baseline for that study. So, I really don’t like to get into percentages
because it changes for every situation.

DEFENSE COUNSEL: Give us an example of a study.

TERRELL: Okay. So –

STATE: Judge, that I would object to as irrelevant.

THE COURT: Overruled.

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TERRELL: Okay. So, we bring in participants. We show everyone the
same video and then we produce a lineup that they look at and we
show the lineup in three different ways. And I don’t know that I need
to describe the ways but –

DEFENSE COUNSEL: Go ahead. Describe it.

TERRELL: One would be a simultaneous lineup where you see all the
photographs at the same time, like we have in this case. One would be
sequential. You show them the photograph one at a time, and they
have to make a judgment on that photograph before moving to the
next. And what I’m working on right now is a third type of lineup
where they see them in a continuous loop. I call it a slide show. So,
photos are moving along one at a time and they’re just watching this.
And we would then ask them to identify who they think committed
the crime. We would ask them to give a confidence rating of how
certain they are, and we would compile the data and see who does
better in which group. And those percentages vary, based on which
video we’re using, what kind of delay we’re using. And so the
percentages are a little too literal to give as an example that
represents all of them. But you get different percentages of people
making correct identifications in all three of those groups.

DEFENSE COUNSEL: Do you have people who make incorrect
identifications?

TERRELL: Yes.

DEFENSE COUNSEL: And do you know the percentage?

TERRELL: Again, it’s –

STATE: Asked and answered.

THE COURT: Sustained. He says he can’t give percentages.

DEFENSE COUNSEL: Can you tell us if it’s over 50% or under 50%?

35
 TERRELL: Sometimes it’s over 50%. Again, it depends on how
challenging we’re making it, how long we make them wait, for
example.

DEFENSE COUNSEL: Depends on the circumstances?

TERRELL: Uh-huh, yes.

STATE: Judge, in front of the jury, I would object to him giving
percentages because of the variables that he has cited and relevance to
this case.

THE COURT: I’ll sustain that objection, as to the percentages.

(5 RR 106-109). At the conclusion of the hearing, the trial court held that Terrell

could testify as an “expert about what he knows about this case and what his

criticism or what his expert opinion is with regard to the way this was conducted

and whether there’s a likelihood because of the way it was conducted in this case

it could be a misidentification.” (5 RR 110-11).

In front of the jury, Terrell described the experiments he had personally

conducted that dealt with identification (5 RR 111-12). Additionally, he testified

about the different photo spreads he has used and which he preferred based on

different studies (5 RR 112-15). Furthermore, Terrell testified about his review of

the identification in the present case and the potential issues (5 RR 112-26). He

based his opinion on the type of photo spread used, the 10 days between the crime

and identification, Trelles’ gunshot wound causing him stress, weapon focus, cross

36
racial identification, and the differences in the participants in the photo spread (5

RR 112-26).

I. Standard of Review and Applicable Law
The trial court’s ruling on the admissibility of evidence is subject to an

abuse of discretion standard on appeal. Shepherd v. State, 273 S.W.3d 681, 684 (Tex.

Crim. App. 2008); Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005).

This includes the admissibility of expert testimony. See TEX. R. EVID. 104(a). A trial

court's ruling will be upheld if it was within the zone of reasonable disagreement.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Montgomery v. State,

810 S.W.2d 372, 391 (Tex. Crim. App. 1990). In addition, the appellate court must

review the trial court’s ruling in light of what was before the trial court at the time

the ruling was made. Id.; Valtierra v. State, 310 S.W.3d 442, 447 (Tex. Crim. App.

2010); Morales v. State, 32 S.W.3d 862, 865 (Tex. Crim. App. 2000) (“An appellate

court should not disturb the trial court’s decision to admit or exclude scientific

evidence absent an abuse of discretion.”).

A trial court serves as the gatekeeper and determines the reliability and

relevance of an expert’s testimony. See TEX. R. EVID. 702; Kelly v. State, 824 S.W.2d

568 (Tex. Crim. App. 1992); Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App.

2011). The focus of the reliability analysis is to determine “whether the evidence

has its basis in sound scientific methodology such that testimony about junk

37
science is weeded out.” Tillman, 354 S.W.3d at 435 (internal quotes omitted).

Whereas, the standard for relevance is whether the scientific principals “will assist

the trier of fact” and are “sufficiently tied” to the pertinent facts of the case. Jordan

v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996).

II. The excluded expert testimony was not sufficiently tied to the
facts to be helpful to the jury.
The appellant argues that the trial court erred in limiting Terrell’s testimony

regarding exonerations of eyewitness based convictions from the Innocence

Project’s database and the error rates among the eyewitnesses in his simulated

crimes. (App’nt Brf. 25-26). But Terrell failed to sufficiently tie this information to

the present case in order to be helpful to the jury.

An expert must make an effort to tie pertinent facts of the case to the

scientific principles that are the subject of his testimony so as to be helpful to the

trier of fact. Jordan, 928 S.W.2d at 555 (noting that it was a matter of application

not a matter of proof); Baldree v. State, 248 S.W.3d 224, 230 (Tex. App.—Houston

[1st Dist.] 2007, pet. ref’d) (noting that generic testimony and general studies are

not sufficient unless they are connected to the facts of the case). Although

relevant, evidence may be excluded under Texas Rule of Evidence 403 if its

probative value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury. See TEX. R. EVID. 403; Morales, 32

38
S.W.3d at 865 (noting that even if a trial judge finds the proposed expert

testimony meets both the Rule 401 and Rule 702 requirements, the judge must

perform a Rule 403 analysis to determine whether the evidence should be

presented to the jury).

First, regarding the exclusion of testimony about the Innocence Project’s

database of exonerations, Terrell testified that there had been over 300

exonerations nationwide based on DNA evidence produced after the fact, but

stated that the reasons for these exonerations varied (5 RR 103-105). He testified

that he could not provide a list of the exonerations because he did not know all of

them (5 RR 100-103). Furthermore, Terrell could not provide a study that relied on

this information and stated that this information was just to show that

exonerations happen in “real life” (5 RR 102-103). Therefore, Terrell failed to tie

the statistical information of the Innocence Project’s number of exonerations to

the facts of this case. See Rousseau v. State, 855 S.W.2d 666, 686 (Tex. Crim. App.

1993) (concluding that testimony was not relevant where expert only referred to

“studies” and did not discuss whether any factors he planned to testify to would

apply to specific facts of the case).

Moreover, even if relevant, the evidence was inadmissible under Rule 403.

Just stating that the Innocence Project notes that some of the 300 exonerations are

due “in part” to erroneous eyewitness testimony without explaining each one

39
would tend to impress the jury in an irrational but nevertheless indelible way (5

RR 100-105). See TEX. R. EVID. 403; Montgomery, 810 S.W.2d at 389–90 (noting the

factors to consider are (1) the probative value of the evidence; (2) the potential to

impress the jury in some irrational yet indelible way; (3) the time needed to

develop the evidence; and (4) the proponent’s need for the evidence). And most

notably, it would require an immense amount of time to go through the facts of

each of the 300 exonerations, showing the similarities and differences to the

present case; the testimony would have taken over the trial. See id. Furthermore,

the appellant did not need this testimony, Terrell already testified that there were

documented cases in which exonerations had taken place due to misidentification

(5 RR 98). Therefore, the trial court did not abuse its discretion in limiting this

portion of Terrell’s testimony.

Second, regarding the exclusion of testimony about the error rates of

Terrell’s own study, there was no testimony for the trial court to exclude. Though

asked multiple times, Terrell could not testify to a percentage of those he studied

who made a false identification (5 RR 106-108). When specifically asked to give an

error rate, Terrell testified, “It’s difficult to get into percentages because all crime

scenarios are different, and really what we do in our experiments is we work off of

baselines.” (5 RR 106). He went on to say, “I really don’t like to get into

percentages because it changes for every situation” and that “percentages vary” (5

40
RR 106-108). When the appellant specifically asked if it would be over or under

50%, Terrell again reiterated that it depended on the circumstances (5 RR 108).

Because Terrell could not testify to an error rate or percentage, he failed to tie it to

the pertinent facts of this case so as to be helpful to the jury. See Rousseau, 855

S.W.2d at 686. Therefore, the trial court did not abuse its discretion in excluding

this testimony. The appellant’s fourth point of error should be overruled.

III. The appellant failed to show he was harmed by the limited
exclusion of Terrell’s testimony.
Even assuming the testimony should have been admitted, the appellant was

not harmed. Under Rule 44.2(b) of the Texas Rules of Appellate Procedure, any

non-constitutional “error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b); TEX. R. EVID. 103;

Walters v. State, 247 S.W.3d 204, 218-19 (Tex. Crim. App. 2007). Courts have

determined that substantial rights are not affected by the erroneous exclusion of

evidence “if the appellate court, after examining the record as a whole, has fair

assurance that the error did not influence the jury, or had but a slight effect.”

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002); Ray v. State, 178 S.W.3d

833, 836 (Tex. Crim. App. 2005) (noting “evidentiary rulings rarely rise to the level

of denying the fundamental constitutional rights to present a meaningful defense”

(citing Potier v. State, 68 S.W.3d 657, 663 (Tex. Crim. App. 2002))). The exclusion

of evidence that furthers an appellant’s defensive theory only incrementally is non-

41
constitutional error. Broussard v. State, 434 S.W.3d 828, 835 (Tex. App.—Houston

[14th Dist.] 2014, pet. ref’d).

A factor to be considered in a harm analysis is if the same or similar evidence

is admitted without objection at another point in trial. Chapman v. State, 150 S.W.3d

809, 814 (Tex. App.—Houston [14th Dist.] 2004, pet ref’d) (citing Mayes v. State,

816 S.W.2d 79, 88 (Tex. Crim. App. 1991)). Here, Terrell was allowed to testify

about the psychology of eyewitness identifications and how certain factors may

contribute to false identifications (5 RR 92-94, 116-26). He explained that memory

is not perfect and that it can be manipulated by several variables, and he testified

that there are documented cases of exonerations (5 RR 94-95, 98). Additionally,

Terrell explained his studies that he had conducted on the topic as well as other

studies he was familiar with and how a simultaneous photo spread, like the one

used in this case, is more susceptible to misidentification and not preferred (5 RR

111-16).

Furthermore, Terrell testified that he had reviewed the documents from this

case and pointed out the variables present that could have caused Trelles to make

a false identification (5 RR 116-26). Therefore, any error in excluding the

Innocence Project’s numeral data or Terrell’s study’s error rate would be harmless

because the same or similar evidence was admitted elsewhere. See Broussard, 434

S.W.3d at 836 (finding harmless error when the trial court excluded testimony

42
regarding whether synthetic marijuana and marijuana smelled different, after the

lab analyst already testified that synthetic marijuana has a fruity smell and the

officer testified it did not smell like marijuana); Montgomery v. State, 383 SW3d 722,

727-28 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (finding harmless error

when the trial court excluded expert testimony regarding the angle of a lane

change that was admitted later without objection).

The exclusion of evidence did not preclude the appellant from presenting a

defense. As previously stated, Terrell testified regarding the unreliability of

eyewitness testimony and specifically the issues he saw in the present case (5 RR

89-99, 111-26). The appellant cross-examined witnesses on Trelles’ description of

the suspect and how he only saw the appellant for a matter of minutes (4 RR 152-

57, 231-35). Moreover, during closing arguments, the appellant addressed at length

the issues with Trelles’ description and the possibility it was Fisher’s husband and

friends that robbed the game room (6 RR 14-19). Therefore, even if the trial court

erred in sustaining these evidentiary objections, the error did not have a

substantial and injurious effect or influence in determining the jury’s verdict.

Tillman v. State, 376 S.W.3d 188, 201-202 (Tex. App.—Houston [14th Dist.] 2012, no

pet.). The appellant’s fourth point of error should be overruled.

43
 CONCLUSION

It is respectfully submitted that all things are regular and the conviction

should be affirmed.

DEVON ANDERSON
District Attorney
Harris County, Texas

/S/ _Katie Davis_________
KATIE DAVIS
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 274-5826
Fax Number (713) 755-5809
Davis_Katie@dao.hctx.net
State Bar Number: 24070242

44
 CERTIFICATE OF SERVICE AND COMPLIANCE
This is to certify that: (a) the word count function of the computer program
used to prepare this document reports that there are 10,579 words in it; and (b) a
copy of the foregoing instrument will be served by efile.txcourts.gov to:

Thomas J. Lewis
1602 Washington Ave.
Houston, TX 77007
Tjlaw2@comcast.net

/S/ _Katie Davis_________
KATIE DAVIS
Assistant District Attorney
Harris County, Texas
1201 Franklin Street, Suite 600
Houston, Texas 77002
Telephone (713) 274-5826
Fax Number (713) 755-5809
Davis_Katie@dao.hctx.net
State Bar Number: 24070242

Date: December 15, 2015

45