Jacob Jordann Bright v. State ( 2015 )

ACCEPTED
07-15-00118-CR
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
11/20/2015 3:23:25 PM
Vivian Long, Clerk
IN THE COURT OF APPEALS FOR THE
SEVENTH COURT OF APPEALS DISTRICT OF TEXAS
FILED IN
7th COURT OF APPEALS
JACOB JORDANN BRIGHT, § AMARILLO, TEXAS
APPELLANT § 11/20/2015 3:23:25 PM
§ VIVIAN LONG
CLERK
V. § NO. 07-15-00118-CR
§
THE STATE OF TEXAS, §
APPELLEE §
APPEALED FROM CAUSE NUMBER 1306330D IN THE CRIMINAL
DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS; THE HONORABLE
ELIZABETH BEACH, JUDGE PRESIDING.
§§§
STATE'S BRIEF
§§§
SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas
DEBRA WINDSOR
Chief, Post-Conviction
STEVEN W. CONDER, Assistant
Criminal District Attorney
Oral Argument 401 W. Belknap
Requested Only If Fort Worth, Texas 76196-0201
Appellant Granted (817) 884-1687
Oral Argument FAX (817) 884-1672
State Bar No. 04656510
COAAppellatealerts@tarrantcountytx.gov
MICHELE HARTMANN, Assistant
Criminal District Attorney
TABLE OF CONTENTS
INDEX OF AUTHORITIES ......................................................................................................... iii
STATEMENT OF THE CASE....................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 1
SUMMARY OF STATE’S REPLIES ........................................................................................... 6
STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER ONE:
SUFFICIENCY ............................................................................................................................ 8
A. Standard of Review ................................................................................................... 8
B. Sufficient Evidence Murder Occurred in Course of Robbery
or Attempted Robbery ........................................................................................... 10
C. Sufficient Evidence of Intent to Kill .................................................................. 14
D. Conclusion ................................................................................................................... 20
STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO:
CAPITAL MURDER INSTRUCTION ................................................................................ 21
A. Trial Court Properly Defined Capital Murder .............................................. 22
B. Any Error Not Reversible ..................................................................................... 24
STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO-A:
FELONY MURDER INSTRUCTION................................................................................. 30
STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO-B:
POSSIBLE DOUBT INSTRUCTION .................................................................................. 32
STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER THREE:
ADMISSION OF TEXT MESSAGES .................................................................................. 34
A. Proper Admission of Text Messages ................................................................ 35
B. Any Error Not Reversible ..................................................................................... 39
i
CONCLUSION AND PRAYER .................................................................................................. 43
CERTIFICATE OF SERVICE ..................................................................................................... 43
CERTIFICATE OF COMPLIANCE ........................................................................................... 44
ii
INDEX OF AUTHORITIES
CASES PAGES
Acosta v. State,
429 S.W.3d 621 (Tex. Crim. App. 2014) ......................................................................... 9
Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984) ........................................................21, 25, 33
Blanton v. State,
2004 WL 3093219 (Tex. Crim. App. 2004) ............................................................... 31
Brooks v. State,
323 S.W.3d 893 (Tex. Crim. App. 2010) ......................................................................... 8
Brown v. State,
270 S.W.3d 564 (Tex. Crim. App. 2008), cert. denied,
556 U.S. 1211, 129 S. Ct. 2075, 173 L. Ed. 2d 1139 (2009) ....................................... 9
Charlton v. State,
334 S.W.3d 5 (Tex. App. - Dallas 2008, no pet.) ....................................................... 15
Clayton v. State,
235 S.W.3d 772 (Tex. Crim. App. 2007) ...................................................................... 10
Conner v. State,
67 S.W.3d 192 (Tex. Crim. App. 2001) ................................................................. 13, 36
Davis v. State,
2005 WL 2100446 (Tex. App. - Fort Worth
August 31, 2005, pet. refused) ........................................................................................ 18
Gardner v. State,
2015 WL 4652718 (Tex. App. - Fort Worth
August 6, 2015, pet. refused) ........................................................................................... 36
iii
Garrett v. State,
851 S.W.2d 853 (Tex. Crim. App. 1993) ...................................................................... 11
Gigliobianco v. State,
210 S.W.3d 637 (Tex. Crim. App. 2006) ...................................................................... 37
Hall v. State,
970 S.W.2d 137 (Tex. App. - Amarillo 1998, pet. refused).................................. 14
Hart v. State,
89 S.W.3d 61 (Tex. Crim. App. 2002) ........................................................................... 15
Hernandez v. State,
969 S.W.2d 440 (Tex. App. - San Antonio 1998, pet. refused) .......................... 13
Herrin v. State,
125 S.W.3d 436 (Tex. Crim. App. 2002) ...................................................................... 13
Hicks v. State,
2015 WL 4462277 (Tex. App. - Dallas July 21, 2015, pet. refused) ............... 17
Hinds v. State,
970 S.W.2d 33 (Tex. App. - Dallas 1998, no pet.) .................................................... 39
Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007) .............................................................................. 9
Ibanez v. State,
749 S.W.2d 804 (Tex. Crim. App. 1986) ...................................................................... 11
Jones v. State,
944 S.W.2d 642 (Tex. Crim. App. 1996) cert. denied,
522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54 (1997)........................................ 17, 18
Joseph v. State,
2013 WL 2149779 (Tex. App. - Houston [14th Dist.]
May 16, 2013, pet. refused) ....................................................................................... 37, 38
iv
Kirsch v. State,
357 S.W.3d 645 (Tex. Crim. App. 2012) ....................................................................... 22
Laster v. State,
275 S.W.3d 512 (Tex. Crim. App. 2009) ...................................................................... 10
Linden v. State,
347 S.W.3d 819 (Tex. App. - Corpus Christi-Edinburg
2011, pet. refused) ............................................................................................................... 17
Martinez v. State,
924 S.W.2d 693 (Tex. Crim. App. 1996) ...................................................................... 22
Matthews v. State,
___ S.W.3d ___, 2015 WL 4076960 (Tex. App. - Fort Worth
July 2, 2015, no pet.) ............................................................................................................ 33
Mays v. State,
318 S.W.3d 368 (Tex. Crim. App. 2010) cert. denied,
562 U.S. 1274, 131 S. Ct. 1606, 179 L. Ed. 2d 3513 (2011) .................................... 15
Medina v. State,
7 S.W.3d 633 (Tex. Crim. App. 1999) cert. denied,
529 U.S. 1102, 120 S. Ct. 1840, 146 L. Ed. 2d 782 (2000)....................................... 26
Montez v. State,
2006 WL 916437 (Tex. App. - Houston [14th Dist.]
April 6, 2006, pet. refused) ............................................................................................... 31
Montgomery v. State,
810 S.W.2d 372 (Tex. Crim. App. 1991) ...................................................................... 35
Mosley v. State,
983 S.W.2d 249 (Tex. Crim. App. 1998) cert. denied,
526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed. 2d 550 (1999) ...................................... 16
v
Motilla v. State,
78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................................................ 39
Nelson v. State,
2015 WL 1757144 (Tex. Crim. App. April 15, 2015)............................................. 37
Ngo v. State,
175 S.W.3d 738 (Tex. Crim. App. 2005) ............................................................... 22, 24
Nolen v. State,
872 S.W.2d 807 (Tex. App. – Fort Worth 1994), pet. refused,
897 S.W.2d 789 (Tex. Crim. App. 1995) ....................................................................... 37
Obigbo v. State,
6 S.W.3d 299 (Tex. App. - Dallas 1999, no pet.) ....................................................... 15
Patrick v. State,
906 S.W.2d 481 (Tex. Crim. App. 1995) cert. denied,
517 U.S. 1106, 116 S. Ct. 1323, 134 L. Ed. 2d 475 (1996)................................ 26, 27
Pitonyak v. State,
253 S.W.3d 834 (Tex. App. - Austin 2008, pet. refused) ............................... 15, 17
Posey v. State,
966 S.W.2d 57 (Tex. Crim. App. 1998) ........................................................................ 31
Powell v. State,
189 S.W.3d 285 (Tex. Crim. App. 2006) ...................................................................... 35
Reyes v. State,
____ S.W.3d ____, 2015 WL 7008130 (Tex. App. - Fort Worth
November 12, 2015) ..............................................................................................15, 17, 37
Riddle v. State,
888 S.W.2d 1 (Tex. Crim. App. 1994), cert. denied,
514 U.S. 1068, 115 S. Ct. 1701, 131 L. Ed. 2d 563 (1995)....................................... 22
vi
Rogers v. State,
991 S.W.2d 263 (Tex. Crim. App. 1999) ...................................................................... 36
Sholars v. State,
312 S.W.3d 694 (Tex. App. - Houston [1st Dist.] 2009, pet. refused) ............. 17
Solomon v. State,
49 S.W.3d 356 (Tex. Crim. App. 2001) ........................................................................ 39
State v. Mechler,
153 S.W.3d 435 (Tex. Crim. App. 2005) ............................................................... 35, 37
Strickland v. State,
2012 WL 955374 (Tex. App. - Fort Worth March 22, 2012, no pet,).............. 14
Threadgill v. State,
146 S.W.3d 654 (Tex. Crim. App. 2004) ............................................................... 15, 23
Torres v. State,
794 S.W.2d 596 (Tex. App. - Austin 1990, no pet.)................................................. 36
Turner v. State,
805 S.W.2d 423 (Tex. Crim. App. 1991) cert. denied,
502 U.S. 870, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991) ............................................ 23
Vasquez v. State,
389 S.W.3d 361 (Tex. Crim. App. 2012) ...................................................................... 25
Villareal v. State,
453 S.W.3d 429 (Tex. Crim. App. 2015) ...................................................................... 24
Vosberg v. State,
80 S.W.3d 320 (Tex. App. - Fort Worth 2002, pet. refused) ........................ 32, 33
Wawrykow v. State,
866 S.W.2d 87 (Tex. App. - Beaumont 1993, pet. refused) ................................. 15
vii
Whitaker v. State,
977 S.W.2d 869 (Tex. App. - Beaumont 1998, pet. refused) .............................. 14
White v. State,
2011 WL 3612213 (Tex. App. - El Paso August 17, 2011, no pet.) ........... 11, 12
Wood v. State,
2001 WL 1047073 (Tex. App. - Dallas September 13, 2001, no pet.) ............ 24
Wyatt v. State,
23 S.W.3d 18 (Tex. Crim. App. 2000) ....................................................................... 9, 18
Yzaguirre v. State,
394 S.W.3d 526 (Tex. Crim. App. 2013) ...................................................................... 26
STATUTES
Tex. Code Crim. Proc. art. 36.14 ........................................................................................... 31
Tex. Penal Code §15.01(a)...................................................................................................... 10
Tex. Penal Code §19.02(b) ..................................................................................................... 22
Tex. Penal Code §19.03(a)(2) .................................................................................10, 15, 22
Tex. Penal Code §29.01(1) ..................................................................................................... 11
Tex. Penal Code §29.02(a)...................................................................................................... 10
RULES
Tex. R. App. P. 44.2(b) .............................................................................................................. 39
Tex. R. Evid. 403 ......................................................................................................................... 35
viii
IN THE COURT OF APPEALS FOR THE
SEVENTH COURT OF APPEALS DISTRICT OF TEXAS
JACOB JORDANN BRIGHT, §
APPELLANT §
§
V. § NO. 07-15-00118-CR
§
THE STATE OF TEXAS, §
APPELLEE §
APPEALED FROM CAUSE NUMBER 1306330D IN THE CRIMINAL
DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS; THE HONORABLE
ELIZABETH BEACH, JUDGE PRESIDING.
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
A jury convicted the appellant of capital murder. (C.R. I:296, 301; R.R.
VI:133). The trial court sentenced him to life confinement. (C.R. I:301; R.R.
VI:135-36).
STATEMENT OF FACTS
On November 19, 2012, the appellant borrowed Beatrice Olvera’s car
and drove to the Southgate Manor Apartments on East Seminary Drive in Fort
Worth, Texas. (R.R. IV:83, 115, 117). The appellant was dressed in jeans and
a black jacket. (R.R. IV:87).
1
At the Southgate Manor Apartments, the appellant ran into childhood
friend, Brian Mason, and his son. (R.R. IV:31-32). Mr. Mason’s son was
playing with a black Halloween mask that covered his face except for eye
openings. (R.R. IV:33). Intrigued, the appellant asked Mr. Mason if he could
have the mask. (R.R. IV:34). Mr. Mason refused and walked off. (R.R. IV:34).
Mr. Mason threw the mask into the street as he drove away from the
Southgate Manor Apartments. (R.R. IV:34).
While inside Mechelle Patterson’s apartment, the appellant talked to
Floyd McCoy about getting some money. (R.R. IV:83, 85). The appellant
decided to rob someone using his .22 Ruger revolver. (R.R. IV:86). The
appellant and Mr. McCoy left Ms. Patterson’s apartment and went in the
breezeway. (R.R. IV:87-88). The men appeared to be waiting for someone to
come through the breezeway. (R.R. IV:88). Mr. McCoy soon returned alone to
Ms. Patterson’s apartment. (R.R. IV:90).
About this time, Islander Tavira and Maria Rodriguez, along with two of
her children, returned to the Southgate Manor Apartments with dinner from
the grocery store. (R.R. III:28, 66). A short African-American man dressed in
black clothes and with a mask covering his face approached Mr. Tavira from
the breezeway. (R.R. III:28, 37, 74-76). The man pointed his gun at Mr.
2
Tavira and demanded money. (R.R. III:28-29, 77-79). Mr. Tavira told the man
that he did not have any money, but the man repeated his request. (R.R.
III:78).
At this point, Ms. Rodriguez’ young son, Jovani, darted past the man
towards their apartment. (R.R. III:28, 79). The man chased after Jovani
through the breezeway with Mr. Tavira and Ms. Rodriguez in pursuit. (R.R.
III:28-29, 80-81). At this point, the man (identified by Mechelle Patterson as
the appellant) turned toward Mr. Tavira and fired multiple gunshots at him.
(R.R. III:29, 84; IV:92). Mr. Tavira fell to the ground and died while the
appellant ran away. (R.R. III:87; IV:93).
Brian Mason observed the appellant running near his house, which was
not far from the Southgate Manor Apartments. (R.R. IV:35). The appellant
seemed excited or startled. (R.R. IV:36). The appellant asked for help, but Mr.
Mason and his friends ran him off. (R.R. IV:36).
Rashad Holloway, another childhood friend, picked up the appellant off
Seminary Drive near Brian Mason’s house and drove him to Ms. Olvera’s
apartment. (R.R. IV:54, 56-57, 65-66). The appellant was “amped up” when
Mr. Holloway arrived. (R.R. IV:64). The two men waited at Ms. Olvera’s
apartment until she arrived home. (R.R. IV:59, 120).
3
The appellant would not tell Ms. Olvera where he had left her car, but
said that Mr. Holloway would take her to it. (R.R. IV:59, 120). Mr. Holloway
drove Ms. Olvera to a location near the Southgate Manor Apartments where
the appellant had parked her car. (R.R. IV:59-60, 122-23).
That night, the appellant told Ms. Olvera that he had done “something
stupid”. (R.R. IV:119). He later told her that he went to the apartment
complex to rob someone, but became scared when he thought the man
recognized him and pulled the trigger. (R.R. IV:128-29).
The police recovered fifteen latent fingerprints from a white Mercury
Cougar parked in the Southgate Manor Apartments parking lot near Ms.
Rodriguez’ truck. (R.R. IV:150). Nine fingerprints matched the appellant, one
fingerprint matched Mr. Tavira, and the remaining five fingerprints were
inconclusive. (R.R. IV:211-13).
Deputy Medical Examiner Marc Krouse conducted an autopsy on Mr.
Tavira’s body. (R.R. V:76). Dr. Krouse determined that Mr. Tavira was struck
by four gunshots, and he recovered three projectiles from his body. (R.R.
V:78-79). Mr. Tavira suffered the following wounds from these gunshots:
1. A graze wound to his right shoulder which damaged his skin;
4
2. An entry wound at the base of his neck just above the collarbone
which caused a lethal injury to his aorta;
3. An entry wound to his left lower axilla below his armpit which
damaged his bowels; and
4. An entry wound to his left elbow which fractured his upper arm
bone.
(R.R. V:80-83). Dr. Krouse classified Mr. Tavira’s death as a homicide caused
by the gunshot wound above his collarbone with contribution from the
gunshot wound to his abdomen. (R.R. V:83-84).
The appellant denied shooting Islander Tavira or even being present
during this shooting. (R.R. V:60). He admitted being in Ms. Patterson’s
apartment at the Southgate Manor Apartments late that afternoon to sell
Floyd McCoy drugs and a .22 Ruger revolver. (R.R. V:62-64). The appellant
then said he left for a nearby apartment complex. (R.R. V:65).
The appellant further testified that he later got into a physical
altercation with Mr. McCoy after he complained that the .22 Ruger revolver
did not work. (R.R. V:72). After a brief fight, the appellant stated that he ran
towards Mr. Mason’s house. (R.R. V:72).
5
SUMMARY OF STATE'S REPLIES
Sufficiency:
Sufficient evidence supports the appellant’s capital murder conviction;
specifically, evidence establishes that he intentionally killed Islander Tavira
while in the course of robbing or attempting to rob him.
Jury Charge - Capital Murder Instruction:
The trial court properly defined capital murder, including its intentional
culpable mental state. Alternatively, any error regarding the trial court’s
definition did not cause the appellant egregious harm.
Jury Charge - Felony-Murder Instruction:
The trial court was not required to sua sponte instruct the jury on the
lesser offense of felony-murder.
Jury Charge - Possible Doubt Instruction:
The trial court did not err by instructing the jury that the prosecution
was not required to prove guilt beyond all possible doubt.
6
Admission of Text Messages:
The trial court properly admitted text messages between the appellant
and his brother because their probative value was not substantially
outweighed by the danger of unfair prejudice. Alternatively, any error is not
reversible.
7
STATE'S REPLY TO APPELLANT'S POINT OF ERROR NUMBER ONE:
SUFFICIENCY
Appellant's Contention:
The appellant contends that the evidence is insufficient to support his
conviction because the evidence does not establish that he committed the
murder in the course of committing robbery or aggravated robbery and
because there was no evidence of a specific intent to kill.
State's Reply:
Sufficient evidence supports the appellant’s capital murder conviction;
specifically, evidence establishes that he intentionally killed Islander Tavira
while in the course of robbing or attempting to rob him.
Arguments and Authorities:
A. Standard of Review
In reviewing a sufficiency complaint, the appellate court should examine
the evidence in the light most favorable to the verdict to determine whether
any rational factfinder could have found the alleged offense’s essential
elements beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902,
8
912 (Tex. Crim. App. 2010). Direct evidence of the elements of the offense is
not required. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). Juries
are permitted to make multiple reasonable inferences from the evidence
presented at trial, and circumstantial evidence is as probative as direct
evidence in establishing the guilt of an actor. Hooper v. State, 214 S.W.3d at
14–16.
Circumstantial evidence is as probative as direct evidence in
establishing a defendant’s guilt, and circumstantial evidence alone can be
sufficient. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). In
circumstantial cases, it is not necessary that every fact and circumstance point
directly and independently 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. Acosta v. State, 429 S.W.3d at 625.
The jury as factfinder is the sole judge of the weight and credibility of
the evidence presented, and is free to believe or disbelieve any testimony. See
Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 556
U.S. 1211, 129 S. Ct. 2075, 173 L. Ed. 2d 1139 (2009); Wyatt v. State, 23 S.W.3d
18, 30 (Tex. Crim. App. 2000). The appellate court presumes that the jury
resolved any conflicting inferences in favor of the prosecution, and defers to
9
that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
So long as the verdict is supported by a reasonable inference, it is within the
jury’s province to choose which inference is most reasonable. Laster v. State,
275 S.W.3d 512, 523-24 (Tex. Crim. App. 2009).
B. Sufficient Evidence Murder Occurred in Course of Robbery or
Attempted Robbery
A person commits capital murder if he intentionally commits murder in
the course of committing or attempting to commit kidnapping, burglary,
robbery, aggravated sexual assault, arson, obstruction or retaliation. Tex.
Penal Code §19.03(a)(2). A person commits robbery if, in the course of
committing theft and with intent to obtain or maintain control of the property,
he intentionally, knowingly, or recklessly causes bodily injury to another; or
he intentionally or knowingly threatens or places another in fear of imminent
bodily injury or death. Tex. Penal Code §29.02(a). A person commits an
offense if, with specific intent to commit an offense, he does an act amounting
to more than mere preparation that tends but fails to effect the commission of
the offense intended. Tex. Penal Code §15.01(a).
Since committing murder and an unrelated taking or attempted taking
10
of property do not alone constitute capital murder, the State must prove a
nexus between the murder and the theft or attempted theft. See Ibanez v.
State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986). The robbery statute
defines the phrase “in the course of committing theft” as “conduct that occurs
in an attempt to commit, during the commission, or in immediate flight after
the attempt or commission of theft”. Tex. Penal Code §29.01(1). This same
definition of “in the course of committing” applies to the capital murder
statute. Ibanez v. State, 749 S.W.2d at 807. Thus, the State must show that
the murder occurred during the commission or attempted commission of the
underlying theft or while in immediate flight therefrom. See Ibanez v. State,
749 S.W.2d at 807.
A capital murder offense is not temporally limited to the time during
which the defendant committed the robbery. White v. State, 2011 WL
3612213, at *5 (Tex. App. - El Paso August 17, 2011, no pet.) (not designated
for publication), citing Garrett v. State, 851 S.W.2d 853, 856 (Tex. Crim. App.
1993). A capital murder’s chronology includes the moments of the
defendant’s flight from the scene immediately following the robbery’s
commission. White v. State, 2011 WL 3612213, at *5.
11
The following evidence demonstrates a clear nexus between the
attempted robbery and the fatal shooting:
• A short African-American man dressed in black clothes and with a
mask covering his face approached Mr. Tavira from a breezeway
at the Southgate Manor Apartments. (R.R. III:28, 37, 74-76).
• The man pointed his gun at Mr. Tavira and demanded money.
(R.R. III:28-29, 77-79).
• Mr. Tavira told the man that he did not have any money, but the
man repeated his request. (R.R. III:78).
• At this point, Ms. Rodriguez’ young son, Jovani, darted past the
man towards their apartment. (R.R. III:28, 79).
• The man chased after Jovani through the breezeway with Mr.
Tavira and Ms. Rodriguez in pursuit. (R.R. III:28-29, 80-81).
• At this point, the man (identified by Mechelle Patterson as the
appellant) turned toward Mr. Tavira and fired multiple gunshots
at him. (R.R. III:29, 84; IV:92).
• Mr. Tavira fell to the ground and died while the appellant ran
away from the apartment complex. (R.R. III:87; IV:93).
• The appellant told his girlfriend, Beatrice Olvera, that he shot Mr.
Tavira because he thought that he recognized him. (R.R. IV:128-
29).
In sum, this evidence demonstrates that the appellant murdered Islander
Tavira while in the course of attempting to rob him or in his immediate flight
therefrom. See White v. State, 2011 WL 3612213, at *5 (evidence that
12
defendant shot victim as he was fleeing the scene of a robbery sufficient to
establish capital murder).
The State must further show that the defendant’s intent to rob was
formulated before or at the time of the murder. Herrin v. State, 125 S.W.3d
436, 441 (Tex. Crim. App. 2002); Conner v. State, 67 S.W.3d 192, 197 (Tex.
Crim. App. 2001). In other words, if a jury can rationally conclude that the
defendant formed his intent to obtain control over the victim's property
before or during the commission of the murder, the evidence will support a
conclusion that the murder occurred in the course of robbery. See Hernandez
v. State, 969 S.W.2d 440, 444 (Tex. App. - San Antonio 1998, pet. refused).
The following evidence shows that the appellant planned this robbery
before he shot and killed Islander Tavira:
• The appellant was intrigued with Brian Mason’s son’s black
Halloween mask, and asked Mr. Mason if he could have the mask.
(R.R. IV:33-34).
• After meeting with Floyd McCoy, the appellant decided to use his
.22 Ruger revolver to rob someone. (R.R. IV:85-86).
• The appellant and Mr. McCoy went into the breezeway where he
waited for someone to pass by them. (R.R. IV:87-88).
• The appellant came from the breezeway, approached Mr. Tavira
in the parking lot, pointed his gun at him, and demanded money.
(R.R. III:28-29, 74-79).
13
• The appellant subsequently came running from the breezeway
into the apartment courtyard where he turned toward Mr. Tavira
and fired multiple gunshots at him. (R.R. III:29, 84; IV:92).
• Mr. Tavira fell to the ground and died while the appellant ran
away from the apartment complex. (R.R. III:87; IV:93).
Put simply, the appellant formulated his robbery intent before Mr. Tavira’s
murder. See Whitaker v. State, 977 S.W.2d 869, 873 (Tex. App. - Beaumont
1998, pet. refused) (testimony that defendant and others planned robbery
beforehand establishes that he formulated robbery plan before murder
occurred); Strickland v. State, 2012 WL 955374, at 6-7 (Tex. App. - Fort
Worth March 22, 2012, no pet,) (not designated for publication) (evidence
that defendant, armed with a loaded weapon, entered motel room with intent
to commit theft shows he formulated robbery plan before murder occurred).
See also Hall v. State, 970 S.W.2d 137, 141-42 (Tex. App. - Amarillo 1998, pet.
refused) (contemporaneous theft from murder victim sufficient to establish
that defendant had intent to rob at the time of the murder).
C. Sufficient Evidence of Intent to Kill
A person commits capital murder if he intentionally commits murder in
the course of committing or attempting to commit kidnapping, burglary,
14
robbery, aggravated sexual assault, arson, obstruction or retaliation. Tex.
Penal Code §19.03(a)(2). Capital murder is a “result of conduct” offense,
which means the culpable mental state relates to the result of the conduct –
causing the murder. Mays v. State, 318 S.W.3d 368, 387 (Tex. Crim. App.
2010), cert. denied, 562 U.S. 1274, 131 S. Ct. 1606, 179 L. Ed. 2d 3513 (2011).
Put another way, capital murder requires an intent to kill. See Threadgill v.
State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004).
Direct evidence of intent is not required. Hart v. State, 89 S.W.3d 61, 64
(Tex. Crim. App. 2002); Reyes v. State, ____ S.W.3d ____, 2015 WL 7008130, at
*5 (Tex. App. - Fort Worth November 12, 2015). A defendant’s intent may be
inferred from his acts, words and conduct. Reyes v. State, 2015 WL 7008130,
at *5; Charlton v. State, 334 S.W.3d 5, 12 (Tex. App. - Dallas 2008, no pet.).
The jury may consider events that occurred before, during, and after the
offense in determining intent. Pitonyak v. State, 253 S.W.3d 834, 844 (Tex.
App. - Austin 2008, pet. refused). Finally, jurors are free to use their common
sense and apply common knowledge, observation, and experience gained in
the ordinary affairs of life when giving effect to the inferences that may
reasonably be drawn from the evidence. See Obigbo v. State, 6 S.W.3d 299,
305 (Tex. App. - Dallas 1999, no pet.); Wawrykow v. State, 866 S.W.2d 87, 88–
15
89 (Tex. App. - Beaumont 1993, pet. refused).
The following evidence supports the jury’s finding that the appellant
intentionally committed this capital murder:
• The appellant planned an armed robbery to obtain some money.
(R.R. IV:85).
• Armed with his .22 Ruger revolver, the appellant waited in a
breezeway for a passerby. (R.R. IV:87-88).
• The appellant pointed his gun at Islander Tavira and twice
demanded money. (R.R. III:28-29, 77-79).
• While chasing after young Jovani Rodriguez, the appellant turned
toward Mr. Tavira and fired multiple gunshots at him. (R.R. III:28-
29, 79-81, 84; IV:92-93).
• Mr. Tavira was struck by four gunshots of which three entered his
body. (R.R. V:78-79).
• Mr. Tavira died from a fatal gunshot wound at the base of his neck
just above his collarbone which lacerated his aorta. (R.R. V:80-81,
83-84).
• The appellant told Beatrice Olvera that he shot Mr. Tavira because
he thought that he recognized him. (R.R. IV:128-29).
Given this evidence, the jury rationally concluded that the appellant
intentionally caused Mr. Tavira’s death. See Mosley v. State, 983 S.W.2d 249,
251-55 (Tex. Crim. App. 1998) (finding that capital murder defendant
intentionally caused victim's death supported by evidence he planned the
16
robbery, brought a firearm to accomplish the robbery, and shot victim in the
back of the head from a short distance), cert. denied, 526 U.S. 1070, 119 S. Ct.
1466, 143 L. Ed. 2d 550 (1999); Hicks v. State, 2015 WL 4462277, at *16-17
(Tex. App. - Dallas July 21, 2015, pet. refused) (not designated for publication)
(evidence that defendant shot victim in the head at close range sufficient for
jury to conclude that he intended to cause victim’s death); Linden v. State,
347 S.W.3d 819, 822 (Tex. App. - Corpus Christi-Edinburg 2011, pet. refused)
(evidence that defendant fired four shots hitting victim in the back of head
and neck sufficient to support jury’s intent to kill finding).
A jury may also infer a defendant’s intent to kill from his use of a deadly
weapon, unless it would be unreasonable to infer that death or serious bodily
injury could result from its use. Jones v. State, 944 S.W.2d 642, 647 (Tex.
Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S. Ct. 100, 139 L. Ed. 2d 54
(1997); Reyes v. State, 2015 WL 7008130, at *5; Pitonyak v. State, 253
S.W.3d at 844. When a deadly weapon is fired at close range, and death
results, the law presumes an intent to kill. Sholars v. State, 312 S.W.3d 694,
703 (Tex. App. - Houston [1st Dist.] 2009, pet. refused).
There is no dispute that the a .22 Ruger revolver is a deadly weapon or
that Mr. Tavira died from the gunshot wound to his upper chest. (R.R. V:80-
17
81, 83-84). Likewise, there is ample evidence that the appellant fired this fatal
gunshot that killed Mr. Tavira. (R.R. IV:92-93). Thus, the jury had a sufficient
basis to find that the appellant had the intent to kill. See Jones v. State, 944
S.W.2d at 647 (jury may infer intent to kill from evidence that defendant
planned the robbery and brought a deadly weapon to accomplish the task);
Davis v. State, 2005 WL 2100446, at *5 (Tex. App. - Fort Worth August 31,
2005, pet. refused) (not designated for publication) (jury could infer intent to
kill from fact that defendant employed a handgun in his attempt to rob the
victim).
The appellant denied shooting Islander Tavira or even being present at
the Southgate Manor Apartments when Mr. Tavira was shot. (R.R. V:60). The
jury, however, was free to disbelieve this testimony. See Wyatt v. State, 23
S.W.3d at 30 (jury may believe or disbelieve any testimony in its role as the
exclusive judge of the credibility of witnesses and the weight to be given their
testimony).
Furthermore, other evidence undercuts the appellant’s denials:
• The appellant formulated a robbery plan in order to obtain some
money. (R.R. IV:85-86).
• Armed with his .22 Ruger revolver, the appellant waited in the
breezeway of the Southgate Manor Apartments for a potential
18
victim. (R.R. IV:87-88).
• The appellant approached Islander Tavira from the breezeway,
pointed his gun at him, and twice demanded money. (R.R. III:28-
29, 74-79).
• When young Jovani Rodriguez darted by, the appellant began
chasing him. (R.R. III:28-29, 79-80).
• The appellant turned and fired multiple gunshots at Mr. Tavira.
(R.R. III:29, 84; IV;92-93).
• Mr. Tavira died from one of these gunshot wounds. (R.R. V:80-81,
83-84).
• The appellant fled the murder scene on foot until he was able to
get Rashad Holloway to drive him home. (R.R. IV:56-57, 93).
• The appellant was “amped up” when Mr. Holloway arrived to
drive him home. (R.R. IV:64).
• The appellant had Mr. Holloway drive Beatrice Olvera to a
location near the Southgate Manor Apartments where he had
parked her car. (R.R. IV:59-60, 120, 122-23).
• The appellant told Ms. Olvera that he went to the Southgate Manor
Apartments to rob someone. (R.R. IV:128).
• The appellant told Ms. Olvera that he shot the man because he
thought the man recognized him. (R.R. IV:128-29).
• The police recovered fifteen latent fingerprints from a white
Mercury Cougar parked in the Southgate Manor Apartments
parking lot near Ms. Rodriguez’ truck. (R.R. IV:150).
• Nine fingerprints matched the appellant, one fingerprint matched
Mr. Tavira, and the remaining five fingerprints were inconclusive.
19
(R.R. IV:211-13).
Given this other evidence, the jury acted within its rights to reject the
appellant’s denials and find that he intentionally killed Islander Tavira while
in the course of attempting to rob him.
D. Conclusion
The evidence sufficiently establishes that the appellant intentionally
killed Islander Tavira while in the course of attempting to rob him or in
immediate flight therefrom.
The appellant’s point of error number one should be overruled.
20
STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO:
CAPITAL MURDER INSTRUCTION
Appellant’s Contention
The appellant contends that the trial court improperly defined capital
murder too broadly by not limiting its murder definition or including a
specific intent to kill instruction.
State’s Response
The trial court properly defined capital murder, including its intentional
culpable mental state. Alternatively, any error regarding the trial court’s
definition did not cause the appellant egregious harm.
Argument and Authorities
Jury charge error claims are analyzed under the two-pronged Almanza1
test:
1. Whether error exists.
2. If error exists, whether sufficient harm resulted from the error to
compel reversal.
1 See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (opinion
on rehearing).
21
Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If no error exists,
the reviewing court’s analysis ends. Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012).
A. Trial Court Properly Defined Capital Murder
The trial court defined the terms “capital murder” and “murder” as
follows:
Our law provides that a person commits the offense of murder if he
intentionally causes the death of an individual, or intends to cause
serious bodily injury and commits an act clearly dangerous to human
life that causes the death of an individual.
A person commits the offense of capital murder if the person
intentionally commits the offense of murder in the course of committing
or attempting to commit robbery.
(C.R. I:289). These definitions each tracked the statutory language for these
criminal offenses. See Tex. Penal Code §§19.02(b), 19.03(a)(2). A jury
charge which tracks the statutory language for an offense set out by the Texas
Legislature is a proper charge on the statutory issue and will not be deemed
error on the trial court’s part. Martinez v. State, 924 S.W.2d 693, 699 (Tex.
Crim. App. 1996); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994), cert.
denied, 514 U.S. 1068, 115 S. Ct. 1701, 131 L. Ed. 2d 563 (1995).
22
Capital murder requires proving a defendant’s intent to kill. See
Threadgill v. State, 146 S.W.3d at 665. In light of this requirement, the trial
court limited the culpable mental state for jury consideration of capital
murder with the following language:
if the person intentionally commits the offense of murder
(C.R. I:289).
Furthermore, abstract definitions must be examined in the context in
which the defined term appears, and cannot be limited to portions of the
charge standing alone. Turner v. State, 805 S.W.2d 423, 430 (Tex. Crim. App.
1991), cert. denied, 502 U.S. 870, 112 S. Ct. 202, 116 L. Ed. 2d 162 (1991). The
application paragraph required the jury to find that the appellant intentionally
caused Mr. Tavira’s death, as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or
about the 19th day of November, 2012, in Tarrant County, Texas, Jacob
Jordann Bright, did then and there intentionally cause the death of an
individual, Islander Tavira, by shooting him with a firearm, and the said
defendant was then and there in the course of committing or attempting
to commit the offense of robbery, then you will find the defendant guilty
of capital murder as charged in the indictment.
(C.R. I:291).
In sum, the abstract definition of capital murder required the jury to
find that appellant intentionally committed the murder and the application
23
paragraph required the jury to find that appellant intentionally murdered
Islander Tavira; thus, the trial court’s instructions properly limited the jury’s
capital murder consideration. See Wood v. State, 2001 WL 1047073, at *7
(Tex. App. - Dallas September 13, 2001, no pet.) (not designated for
publication) (abstract definition and application paragraph requiring jury to
find intentional murder excluded jury from considering “knowingly” mental
state included in murder definition).
Finally, the capital murder statute does not require a specific intent to
kill instruction where the abstract definition and application paragraph have
limited jury consideration to intentional murder. See Wood v. State, 2001 WL
1047073, at *8.
The appellant’s point of error number two should be overruled.
B. Any Error Not Reversible
The degree of harm required for jury charge error to be reversible error
depends on whether the error was preserved in the trial court. Villareal v.
State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d at
743. The appellant did not object to the trial court’s capital murder and
murder definitions. (R.R. VI:103).
24
Unobjected-to error in the jury charge will not result in a reversal unless
it is so egregious and created such harm that the defendant did not have a fair
and impartial trial. Almanza v. State, 686 S.W.2d at 171. The actual degree of
“egregious” harm must be assayed in light of the jury charge itself, the state of
the evidence including contested issues, the argument of counsel and any
other relevant information revealed by the trial record as a whole. Almanza
v. State, 686 S.W.2d at 171.
Any error arising from the jury instruction’s abstract definitions is not
egregious because the application paragraph correctly limited the jury as
follows:
Now, if you find from the evidence beyond a reasonable doubt that on or
about the 19th day of November, 2012, in Tarrant County, Texas, Jacob
Jordann Bright, did then and there intentionally cause the death of an
individual, Islander Tavira, by shooting him with a firearm, and the said
defendant was then and there in the course of committing or attempting
to commit the offense of robbery, then you will find the defendant guilty
of capital murder as charged in the indictment.
(C.R. I:291).
The application paragraph is the “heart and soul” of the jury charge. See
Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012) (application
paragraph is that portion of the jury charge that applies the pertinent penal
law, abstract definitions, and general legal principles to the particular facts
25
and the indictment allegations). It is the application paragraph of the charge,
and not the abstract portion, that authorizes a conviction. Yzaguirre v. State,
394 S.W.3d 526, 530 (Tex. Crim. App. 2013). As explained by the Court of
Criminal Appeals:
[T]he application paragraph is what, as a practical manner, authorizes
the jury to convict but is not necessarily determinative of what legally
authorizes a conviction. The application paragraph is what explains to
the jury, in concrete terms, how to apply the law to the facts of the case.
We look at the wording of the application paragraph to determine
whether the jury was correctly instructed in accordance with the
indictment and also what the jury likely relied upon in arriving at its
verdict, which can help resolve a harm analysis.
Yzaguirre v. State, 394 S.W.3d at 530. Where the application paragraph
correctly instructs the jury on the law applicable to the case, it mitigates
against a finding that error in the abstract portion was egregious. See Medina
v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102,
120 S. Ct. 1840, 146 L. Ed. 2d 782 (2000); Patrick v. State, 906 S.W.2d 481, 493
(Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106, 116 S. Ct. 1323, 134 L. Ed. 2d
475 (1996).
The application paragraph herein specifically instructed the jury that, in
order to convict the appellant of capital murder, it must find beyond a
reasonable doubt that he intentionally caused Islander Tavira’s death. (C.R.
26
I:291). Thus, it correctly instructed the jury on the applicable law, which
militates against any egregious harm finding. See Patrick v. State, 906 S.W.2d
at 493.
The record does not establish egregious harm because there is ample
evidence showing that the appellant intentionally shot and killed Islander
Tavira:
• On November 19, 2012, the appellant borrowed Beatrice Olvera’s
car and drove to the Southgate Manor Apartments on East
Seminary Drive in Fort Worth, Texas. (R.R. IV:83, 115, 117).
• At the Southgate Manor Apartments, the appellant ran into Brian
Mason whose son was playing with a black Halloween mask that
covered his face except for eye openings. (R.R. IV:31-33).
• Intrigued, the appellant asked Mr. Mason if he could have the
mask. (R.R. IV:34).
• Inside Mechelle Patterson’s apartment, the appellant formulated a
robbery plan to obtain some money. (R.R. IV:85-86).
• Armed with his .22 Ruger revolver, the appellant waited in the
breezeway of the Southgate Manor Apartments for a potential
victim. (R.R. IV:87-88).
• About this time, Islander Tavira and Maria Rodriguez, along with
two of her children, returned to the Southgate Manor Apartments
with dinner from the grocery store. (R.R. III:28, 66).
• The appellant (with a mask covering his face) approached Mr.
Tavira from the breezeway, pointed his gun at him, and twice
demanded money. (R.R. III:28-29, 74-79).
27
• When young Jovani Rodriguez darted by, the appellant began
chasing him through the breezeway with Mr. Tavira and Ms.
Rodriguez in pursuit. (R.R. III:28-29, 79-81).
• The appellant then turned toward Mr. Tavira and fired multiple
gunshots at him. (R.R. III:29, 84; IV:92).
• Mr. Tavira was struck by four gunshots of which three entered his
body. (R.R. V:78-79).
• Mr. Tavira died from a fatal gunshot wound at the base of his neck
just above his collarbone which lacerated his aorta. (R.R. V:80-81,
83-84).
• The appellant fled the murder scene on foot. (R.R. IV:93).
• Brian Mason observed the appellant running not far from the
Southgate Manor Apartments. (R.R. IV:35).
• The appellant seemed excited or startled. (R.R. IV:36).
• The appellant asked for help, but Mr. Mason and his friends ran
him off. (R.R. IV:36).
• Rashad Holloway picked up the appellant off Seminary Drive and
drove him to the apartment he shared with Beatrice Olvera. (R.R.
IV:54, 56-57, 65-66).
• The appellant was “amped up” when Mr. Holloway arrived. (R.R.
IV:64).
• The appellant had Mr. Holloway drive Ms. Olvera to a location
near the Southgate Manor Apartments where he had parked her
car. (R.R. IV:59-60, 120, 122-23).
• The appellant told Ms. Olvera that he went to the Southgate Manor
28
Apartments to rob someone. (R.R. IV:128).
• The appellant told Ms. Olvera that he shot the man because he
thought the man recognized him. (R.R. IV:128-29).
• The police recovered fifteen latent fingerprints from a white
Mercury Cougar parked in the Southgate Manor Apartments
parking lot near Ms. Rodriguez’ truck. (R.R. IV:150).
• Nine fingerprints matched the appellant, one fingerprint matched
Mr. Tavira, and the remaining five fingerprints were inconclusive.
(R.R. IV:211-13).
Finally, the appellant presents no evidence demonstrating that the jury
did not use the proper legal definitions in deciding his guilt; let alone, any
suggestion that the jury applied this definition in a manner which deprived
him of a fair and impartial trial.2
The appellant’s point of error number two should be overruled.
2 Neither the State nor the defense suggested that the jury should consider any
lesser culpable mental state in deciding whether the appellant committed
capital murder in Mr. Tavira’s death. (R.R. VI:104-32).
29
STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO-A:
FELONY-MURDER INSTRUCTION
Appellant’s Contention
The appellant contends that the trial court improperly failed to include
felony murder within its murder instructions.
State’s Response
The trial court was not required to sua sponte instruct the jury on the
lesser offense of felony-murder.
Argument and Authorities
The trial court instructed the jury on the lesser offense of murder as
follows:
Our law provides that a person commits the offense of murder if he
intentionally causes the death of an individual, or intends to cause
serious bodily injury and commits an act clearly dangerous to human
life that causes the death of an individual.
.....
Now, if you find from the evidence beyond a reasonable doubt that on or
about the 19th day of November, 2012, in Tarrant County, Texas, Jacob
Jordann Bright, did then and there intentionally cause the death of an
individual, Islander Tavira, by shooting him with a firearm, or intended
30
to cause serious bodily injury to Islander Tavira and committed an act
clearly dangerous to human life, by shooting him with a firearm, then
you will find the defendant guilty of the lesser included offense of
murder.
(C.R. I:289, 292). The appellant did not request a jury instruction on the lesser
offense of felony-murder. (R.R. VI:103).
A defendant must object to the jury charge to preserve for appellate
review any errors of omissions or complaints that the trial court failed to
charge on issues arising from the facts. See Posey v. State, 966 S.W.2d 57, 61
(Tex. Crim. App. 1998) (trial court has no duty to sua sponte instruct on
defense issues); Tex. Code Crim. Proc. art. 36.14. The appellant did not
preserve this issue by requesting a jury instruction on felony-murder. See
Montez v. State, 2006 WL 916437, at *5 (Tex. App. - Houston [14th Dist.] April
6, 2006, pet. refused) (not designated for publication) (defendant has not
preserved any argument for inclusion of a felony-murder instruction where
he never requested a charge on felony murder; only an instruction on the
lesser-included offense of murder).3
The appellant’s point of error number two-a should be overruled.
3 See also Blanton v. State, 2004 WL 3093219, at *12 (Tex. Crim. App. 2004)
(defendant has not preserved for trial court’s failure to instruct on felony
murder for appellate review where he only requested an instruction on the
lesser-included offense of murder).
31
STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO-B:
POSSIBLE DOUBT INSTRUCTION
Appellant’s Contention
The appellant contends that the trial court improperly instructed the
jury that the prosecution was not required to prove guilt beyond all possible
doubt.
State’s Response
The trial court did not err by instructing the jury that the prosecution
was not required to prove guilt beyond all possible doubt.
Argument and Authorities
The trial court instructed the jury as follows:
It is not required that the prosecution prove guilt beyond all possible
doubt. It is required that the prosecution's proof excluded all
‘reasonable doubt’ concerning the defendant's guilt
(C.R. I:291).
This instruction merely notes that reasonable doubt does not mean all
possible doubt, and is not an erroneous “reasonable doubt” definition.
Vosberg v. State, 80 S.W.3d 320, 324 (Tex. App. - Fort Worth 2002, pet.
32
refused); Matthews v. State, ___ S.W.3d ___, 2015 WL 4076960, at *1 (Tex. App.
- Fort Worth July 2, 2015, no pet.). There is no reason for this Court to change
its long-standing holding that this instruction is not erroneous. See Vosberg
v. State, 80 S.W.3d at 324; Matthews v. State, 2015 WL 4076960, at *1.
The appellant’s point of error number two-b should be overruled.4
4 The appellant did not object to this jury instruction and makes no showing
that its inclusion caused him egregious harm or denied him a fair and
impartial trial. See Almanza v. State, 686 S.W.2d at 171.
33
STATE'S REPLY TO APPELLANT'S POINT OF ERROR NUMBER THREE:
ADMISSION OF TEXT MESSAGES
Appellant's Contention:
The appellant contends that the trial court improperly admitted text
messages into evidence.
State's Reply:
The trial court properly admitted text messages between the appellant
and his brother because their probative value was not substantially
outweighed by the danger of unfair prejudice. Alternatively, any error is not
reversible.
Arguments and Authorities:
The trial court admitted a series of text messages between the appellant
and his brother “Shawn” 5, in which “Shawn”:
• Instructs the appellant to get a different phone;
• Tells the appellant that he can “get away with this”;
5 “Shawn” was previously identified as the appellant’s brother, Thaddeus
Shawn Mayfield. (R.R. V:65-66).
34
• Informs the appellant that he intends to make sure that “nobody
talkin”; and
• Inquires if anyone saw the appellant, to which the appellant
replies “No”.
(R.R. VII:State’s Exhibits #76-85).
A. Proper Admission of the Text Messages
A trial court may exclude evidence if its probative value is substantially
outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. By using the
term “may”, this rule’s draftsman intended that the trial court be given very
substantial discretion in balancing the probative value on the one hand and
the unfair prejudice on the other, and that the trial court should not be
reversed simply because an appellate court believes that it would have
decided the matter differently. Powell v. State, 189 S.W.3d 285, 288–89 (Tex.
Crim. App. 2006); State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App.
2005). Put another way, decisions involving admission of evidence are
reviewed under an abuse of discretion standard and an appellate court should
not reverse the trial court's ruling as long as it is at least within the “zone of
reasonable disagreement”. Montgomery v. State, 810 S.W.2d 372, 391-92
(Tex. Crim. App. 1991).
35
Relevant evidence is presumed to be more probative than prejudicial,
and such evidence should be excluded under rule 403 only if there is a “clear
disparity between the degree of prejudice of the offered evidence and its
probative value.” Conner v. State, 67 S.W.3d at 202 (Tex. Crim. App. 2001).
“Unfair prejudice” justifying the exclusion means more than a tendency that
the evidence will injure or prejudice a defendant’s case, which of course is the
point of introducing evidence in the first place, but refers to an undue
tendency to suggest a decision on an improper basis, commonly, though not
necessarily, an emotional one. Rogers v. State, 991 S.W.2d 263, 266 (Tex.
Crim. App. 1999); Gardner v. State, 2015 WL 4652718, at *2 (Tex. App. - Fort
Worth August 6, 2015, pet. refused); Torres v. State, 794 S.W.2d 596, 600
(Tex. App. - Austin 1990, no pet.).
In making a rule 403 determination, the factors that a trial court should
consider in balancing include:
• The probative force of the evidence;
• The State's need for the evidence;
• Any tendency to suggest a decision on an improper basis or
confuse the jury, and
• The likelihood that the presentation of the evidence will consume
an inordinate amount of time.
36
Gigliobianco v. State, 210 S.W.3d 637, 641–42 & n.8 (Tex. Crim. App. 2006);
State v. Mechler, 153 S.W.3d at 440.6 An analysis of these factors weigh in
favor of the trial court’s admission of these text messages.
The text messages demonstrate a consciousness of guilt by the appellant
in seeking assurances from his older brother that he can “get away” with this
murder and that no one will talk about it. (R.R. VII:State’s Exhibits #76-85).
As such, these messages have probative value. See Joseph v. State, 2013 WL
2149779, at *2 (Tex. App. - Houston [14th Dist.] May 16, 2013, pet. refused)
(not designated for publication) (text message telling accomplice “not to say
anyone’s name” indicates a consciousness of guilt), cert. denied, ___ U.S. ___, 134
S. Ct. 2140, 188 L. Ed. 2d 1130 (2014).7 Thus, the “probative force” factor
weighs in favor of their admission.
6 There is no requirement that the trial court place on the record that it has
conducted and completed the rule 403 balancing test in its own mind. Reyes
v. State, 2015 WL 7008130, at *6; Nolen v. State, 872 S.W.2d 807, 812 (Tex.
App. – Fort Worth 1994), pet. refused, 897 S.W.2d 789 (Tex. Crim. App. 1995).
The fact that the judge made a proper balancing test can be implied from the
record and should be presumed even if the record does not contain a
discussion by the court before it overruled a defendant’s rule 403 objection.
Reyes v. State, 2015 WL 7008130; Nolen v. State, 872 S.W.2d at 812.
7 See also Nelson v. State, 2015 WL 1757144, at *13 (Tex. Crim. App. April 15,
2015) (text message referencing that defendant “had done something bad”
probative as consciousness of guilt), cert. denied, ____ U.S. ____, 136 S. Ct. 357,
____ L.Ed.2d ____ (2015).
37
Identity was a central issue in this case in that the appellant denied
shooting Islander Tavira or even being present at the Southgate Manor
Apartments during this fatal shooting. (R.R. V:60). The State had a need for
this evidence because these text messages indicate a consciousness of guilt.
See Joseph v. State, 2013 WL 2149779, at *2. Thus, the “need for the
evidence” factor weighs in favor of their admission.
The appellant does not articulate any undue tendency arising from the
text messages’ admission that the jury’s guilty verdict was due to an emotional
basis or some other improper basis unrelated to the facts of this capital
murder. See Appellant’s Brief, pages 39-44. Thus, the “undue tendency”
factor weighs in favor of their admission.
Finally, the presentation of this evidence was not unduly lengthy.
According to the reporter’s record time stamp, its entire presentation,
including the admissibility challenge, took less than an hour of a week-long
jury trial. (C.R. I:300; R.R. V:129-40, VI:6-24). Thus, the “length of time” factor
weighs in favor of their admission.
Considering these factors together, the trial court properly determined
that the text messages’ probative value was not substantially outweighed by
the danger of unfair prejudice; thus, it did not abuse its discretion by
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admitting them into evidence.
The appellant’s point of error number three should be overruled.
B. Any Error Not Reversible
The erroneous admission of evidence is generally non-constitutional
error and not grounds for reversal unless it affects an accused’s substantial
rights. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Tex. R.
App. P. 44.2(b). Substantial rights are not affected if the reviewing court has
fair assurances that the erroneous exclusion of evidence had no influence or
only a slight influence on the jury. Motilla v. State, 78 S.W.3d 352, 355 (Tex.
Crim. App. 2002). Put another way, to be reversible, the jury must have been
“substantially swayed” by the improperly-admitted evidence. Hinds v. State,
970 S.W.2d 33, 35 (Tex. App. - Dallas 1998, no pet.). In making this
assessment, the reviewing court considers everything in the record, the
nature of the evidence supporting the verdict, the character of the alleged
error, and how it relates to other evidence in the record. Motilla v. State, 78
S.W.3d at 355.
The following evidence demonstrates that the admission of the
appellant’s text messages did not substantially sway the jury in finding that he
39
intentionally killed Islander Tavira while in the course of attempting to rob
him:
• On November 19, 2012, the appellant borrowed Beatrice Olvera’s
car and drove to the Southgate Manor Apartments on East
Seminary Drive in Fort Worth, Texas. (R.R. IV:83, 115, 117).
• The appellant was dressed in jeans and a black jacket. (R.R.
IV:87).
• At the Southgate Manor Apartments, the appellant ran into Brian
Mason whose son was playing with a black Halloween mask that
covered his face except for eye openings. (R.R. IV:31-33).
• Intrigued, the appellant asked Mr. Mason if he could have the
mask. (R.R. IV:34).
• While inside Mechelle Patterson’s apartment, the appellant
formulated a robbery plan to obtain some money. (R.R. IV:85-86).
• Armed with his .22 Ruger revolver, the appellant waited in the
breezeway of the Southgate Manor Apartments for a potential
victim. (R.R. IV:87-88).
• About this time, Islander Tavira and Maria Rodriguez, along with
two of her children, returned to the Southgate Manor Apartments
with dinner from the grocery store. (R.R. III:28, 66).
• The appellant (with a mask covering his face) approached Mr.
Tavira from the breezeway, pointed his gun at him, and twice
demanded money. (R.R. III:28-29, 74-79).
• When young Jovani Rodriguez darted by, the appellant began
chasing him through the breezeway with Mr. Tavira and Ms.
Rodriguez in pursuit. (R.R. III:28-29, 79-81).
40
• The appellant then turned toward Mr. Tavira and fired multiple
gunshots at him. (R.R. III:29, 84; IV:92).
• Mr. Tavira died from one of these gunshot wounds. (R.R. V:80-81,
83-84).
• The appellant fled the murder scene on foot. (R.R. IV:93).
• Brian Mason observed the appellant running near his house,
which was not far from the Southgate Manor Apartments. (R.R.
IV:35).
• The appellant seemed excited or startled. (R.R. IV:36).
• The appellant asked for help, but Mr. Mason and his friends ran
him off. (R.R. IV:36).
• Rashad Holloway picked up the appellant off Seminary Drive near
Brian Mason’s house and drove him to the apartment he shared
with Beatrice Olvera. (R.R. IV:54, 56-57, 65-66).
• The appellant was “amped up” when Mr. Holloway arrived. (R.R.
IV:64).
• The appellant had Mr. Holloway drive Beatrice Olvera to a
location near the Southgate Manor Apartments where he had
parked her car. (R.R. IV:59-60, 120, 122-23).
• The appellant told Ms. Olvera that he went to the Southgate Manor
Apartments to rob someone. (R.R. IV:128).
• The appellant told Ms. Olvera that he shot the man because he
thought the man recognized him. (R.R. IV:128-29).
• The police recovered fifteen latent fingerprints from a white
Mercury Cougar parked in the Southgate Manor Apartments
parking lot near Ms. Rodriguez’ truck. (R.R. IV:150).
41
• Nine fingerprints matched the appellant, one fingerprint matched
Mr. Tavira, and the remaining five fingerprints were inconclusive.
(R.R. IV:211-13).
• Mr. Tavira was struck by four gunshots of which three entered his
body. (R.R. V:78-79).
• Mr. Tavira died from a fatal gunshot wound at the base of his neck
just above his collarbone which lacerated his aorta. (R.R. V:80-81,
83-84).
Thus, the appellant’s substantial rights were not affected by the admission of
these text messages.
The appellant’s point of error number three should be overruled.
42
CONCLUSION AND PRAYER
The appellant suffered no reversible error. Therefore, the State prays
that his conviction and sentence be affirmed.
Respectfully submitted,
SHAREN WILSON
Criminal District Attorney
Tarrant County, Texas
DEBRA WINDSOR
Chief, Post-Conviction
/s/ Steven W. Conder
STEVEN W. CONDER, Assistant
Criminal District Attorney
401 W. Belknap
Fort Worth, Texas 76196-0201
(817) 884-1687
FAX (817) 884-1672
State Bar No. 04656510
COAAppellatealerts@tarrantcountytx.gov
MICHELE HARTMANN, Assistant
Criminal District Attorney
CERTIFICATE OF SERVICE
True copies of the State's brief have been electronically served on
opposing counsel, the Hon. William R. Biggs (wbiggs@williambiggslaw.com),
115 West Second Street, Suite 202, Fort Worth, Texas 76102, on this, the 20th
day of November, 2015.
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/s/ Steven W. Conder
STEVEN W. CONDER
CERTIFICATE OF COMPLIANCE
This document complies with the typeface requirements of Tex. R. App.
P. 9.4(e). It has been prepared in a conventional typeface no smaller than 14-
point for text and 12-point for footnotes. This document complies with the
word-count limitations of Tex. R. App. P. 9.4(i). It contains approximately
7747 words, excluding those parts exempted, as computed by Microsoft Office
Word 2010.
/s/ Steven W. Conder
STEVEN W. CONDER
c18.bright jacob jordann.br
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