Violet Maree Walter v. State ( 2019 )

Opinion filed August 30, 2019
In The
Eleventh Court of Appeals
__________
No. 11-17-00002-CR
__________
VIOLET MAREE WALTER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 42nd District Court
Callahan County, Texas
Trial Court Cause No. 7137
OPINION
At the conclusion of a joint trial, the jury convicted Appellant, Violet Maree
Walter, and her husband, Phillip Jay Walter, Jr., of murder, robbery, and theft of a
firearm. 1 See TEX. PENAL CODE ANN. §§ 19.02, 29.02, 31.03 (West 2019). The trial
court assessed Appellant’s punishment at confinement in the Institutional Division
of the Texas Department of Criminal Justice for forty years for the murder conviction
1
In this opinion, we will refer to Violet Maree Walter as “Appellant” and to her husband, Phillip
Jay Walter, Jr., as “Walter.”
and for twenty years for the robbery conviction. The trial court also assessed
Appellant’s punishment at confinement in the State Jail Division of the Texas
Department of Criminal Justice for a term of two years for the conviction for theft
of a firearm. Additionally, the trial court ordered that the sentences are to run
concurrently. 2 Appellant challenges her convictions in seven issues on appeal. We
affirm.
Background Facts
Don Allen, a police officer with the Abilene Police Department, was found
dead at his home in Clyde on August 31, 2015. Approximately one week before his
death, Allen placed an advertisement on Craigslist seeking an unconventional sexual
encounter. Appellant responded to Allen’s post on August 29, 2015, writing: “Still
looking? Sexy couple in their 20s. . . . Down for anything.” For the next couple of
days, Appellant and Allen e-mailed each other about the prospect of a sexual
encounter between Appellant, Allen, and Walter. Eventually, Allen invited
Appellant and Walter to his home in Clyde on the afternoon of August 31.
That evening, Allen’s fiancée found Allen dead in their bedroom, lying
facedown on the floor. Allen was wearing only a T-shirt and socks; he was otherwise
naked. His hands and ankles had been bound by USB cords, with his hands tied
behind his back. Another USB cord, along with Allen’s shorts, was loosely wrapped
around Allen’s face and neck. There was no evidence of forced entry or a struggle
inside the home.
One of Allen’s neighbors told investigators that he saw a male and a
female arrive at Allen’s home that afternoon. Another one of Allen’s neighbors saw
a vehicle near Allen’s home. The neighbor provided the police with the
vehicle’s make, color, and model. Investigators discovered that Walter owned a
vehicle similar to the vehicle seen near Allen’s home.
2
We note that Walter received the same sentences.
2
Video surveillance from a pawn shop in Abilene showed Walter, accompanied
by Appellant, pawning four video games and a woman’s bracelet on the evening of
August 31. The same four video games had been recently played on Allen’s video
game console, and Allen’s fiancée identified the pawned bracelet as her bracelet.
Investigators also identified Walter’s fingerprint on a water bottle at Allen’s home.
Appellant and Walter were subsequently arrested. Police officers searched
their apartment pursuant to a search warrant. In the apartment, the police found an
Abilene Police Department badge, a Taser, handcuffs, and an ASP case that had been
issued to Allen as an Abilene Police Officer. Allen’s firearm was returned to police
by a confidential informant, and Allen’s police radio was found on the side of a
highway, two miles east of Clyde.
During the search of the apartment, the police also found Appellant’s and
Walter’s cell phones. The police searched the phones pursuant to additional search
warrants. Appellant’s text messages to Walter revealed that they were experiencing
financial difficulties at the time and were in the process of being evicted from their
apartment. Appellant sent Walter several text messages on the day of Allen’s death,
urging Walter to do something to remedy their dire financial situation. For example,
she sent Walter the following text messages on August 31: “Go f--k someone else
and restore our s--t,” “Hurry up and fix this,” “DO SOMETHING NOW,” and “You
NEED to do this. Your fear of a police report versus LOSING us should be bigger.
Your need to feed and house your CHILDREN should be bigger tha[n]
ANYTHING.”
After Appellant set up the meeting with Allen at Allen’s home in Clyde,
Appellant texted Walter that “[w]e have that Clyde lick,” “[w]e MUST do it and do
it hard,” and “[t]he lick is waiting.” The State presented evidence that a “lick” refers
to robbery or thievery.
3
During closing argument, Appellant and Walter argued that Allen consented
to being choked and that he died during “high-risk sex.” To support this theory, the
defense stressed the state in which Allen’s body was found and the lack of any
evidence indicating a struggle or resistance to the USB cables around his wrists or
ankles.
Analysis
Appellant challenges her convictions in seven issues on appeal. Specifically,
she asserts that (1) the trial court abused its discretion by admitting text messages
from her cell phone over her objections that the evidence was irrelevant, unfairly
prejudicial, and inadmissible character evidence; (2) the trial court erred by
admitting three deleted text messages over her authenticity objection; (3) the trial
court abused its discretion by admitting text messages over her Confrontation Clause
objection; (4) the trial court abused its discretion by denying her motion for
continuance; (5) the trial court abused its discretion by denying her second motion
for continuance; (6) the State’s evidence was insufficient to convict her of murder
and robbery; and (7) the trial court erred by submitting a jury instruction on the law
of parties.
Sufficiency of the Evidence
In her sixth issue, Appellant contends that the State’s evidence was
insufficient to convict her of murder and robbery. We review a challenge to the
sufficiency of the evidence, regardless of whether it is denominated as a legal or
factual sufficiency challenge, under the standard of review set forth in Jackson v.
Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet.
ref’d). Under the Jackson standard, we review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have
4
found the essential elements of the offense beyond a reasonable doubt. Jackson, 443
U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
When conducting a sufficiency review, we consider all the evidence admitted
at trial, including pieces of evidence that may have been improperly admitted.
Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235
S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the
sole judge of the witnesses’ credibility and the weight their testimony is to be
afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s
duty to resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319;
Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we
presume that the factfinder resolved the conflicts in favor of the verdict, and we defer
to that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
To determine whether the State has met its burden under Jackson to prove a
defendant’s guilt beyond a reasonable doubt, we compare the elements of the crime
as defined by the hypothetically correct jury charge to the evidence adduced at trial.
Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a charge is one that accurately sets
out the law, is authorized by the indictment, does not unnecessarily increase the
State’s burden of proof or restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried. Id. The law as
authorized by the indictment means the statutory elements of the charged offense as
modified by the factual details and legal theories contained in the charging
instrument. See id. When, as here, the court’s charge authorized the jury to convict
the defendant on more than one theory, the verdict of guilt will be upheld if the
evidence is sufficient on any theory authorized by the charge. See Guevara v. State,
5
152 S.W.3d 45, 49 (Tex. Crim. App. 2004) (citing Rabbani v. State, 847 S.W.2d
555, 558 (Tex. Crim. App. 1992)).
The indictment charged Appellant with murder under all three statutorily
defined ways to commit the offense. See PENAL § 19.02(b)(1)–(3). Under these
statutory provisions, a person commits the offense of murder if he (1) “intentionally
or knowingly causes the death of an individual,” (2) “intends to cause serious bodily
injury and commits an act clearly dangerous to human life that causes the death of
an individual,” or (3) “commits or attempts to commit a felony, other than
manslaughter, and in the course of and in furtherance of the commission or attempt,
or in immediate flight from the commission or attempt, he commits or attempts to
commit an act clearly dangerous to human life that causes the death of an
individual.” Id. These three methods of committing murder are not separate
offenses but, rather, are alternative methods of committing the same offense.
Smith v. State, 436 S.W.3d 353, 378 (Tex. App.—Houston [14th Dist.] 2014, pet.
ref’d).
Under Section 19.02(b)(1), the indictment alleged that Appellant intentionally
or knowingly caused Allen’s death by asphyxiation by choking, strangling, or
otherwise impeding his breathing. Under Section 19.02(b)(2), the indictment
alleged that Appellant committed an act clearly dangerous to human life by choking,
strangling, or otherwise impeding Allen’s breathing with the intent to cause serious
bodily injury. Under Section 19.02(b)(3), the indictment alleged that Appellant
committed or attempted to commit robbery or felony theft and that, in the course
of and in furtherance of the commission or attempt, she committed an act
clearly dangerous to human life by choking, strangling, or otherwise impeding
Allen’s breathing. See PENAL § 29.02 (robbery statute); PENAL § 31.03(e)(4)(C)
(theft of a firearm is a state jail felony). When an indictment alleges multiple
felonies in a prosecution under Section 19.02(b)(3), the specifically named felonies
6
are not elements about which the jury must be unanimous. White v. State, 208
S.W.3d 467, 469 (Tex. Crim. App. 2006).
In addition to charging Appellant under multiple theories of murder, the
court’s charge allowed the jury to convict Appellant either as a primary actor or as
a party with Walter. Under Section 7.01 of the Penal Code, “[a] person is criminally
responsible as a party to an offense if the offense is committed by his own conduct,
by the conduct of another for which he is criminally responsible, or by both.” PENAL
§ 7.01(a) (West 2011); see Adames v. State, 353 S.W.3d 854, 862 (Tex. Crim. App.
2011). The court’s charge permitted the jury to find that Appellant was criminally
responsible for the conduct of Walter under Section 7.02(a)(2) of the Penal Code.
See PENAL § 7.02(a)(2). This statute provides that “[a] person is criminally
responsible for an offense committed by the conduct of another if: . . . acting with
intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense.” Id.; see
Adames, 353 S.W.3d at 862.
Appellant asserts that the evidence is insufficient to support a conviction for
murder because the evidence offered at trial established that Allen’s death was
accidental in nature. Appellant asserts that Allen’s death was accidental because
Allen engaged in “consensual asphyxia.” In presenting these arguments, Appellant
is making a “collective” argument in the sense that she has not differentiated her
alleged conduct from that of Walter’s alleged conduct. Appellant is essentially
asserting that neither she nor Walter could be convicted of murder based upon her
contention of Allen’s alleged consensual conduct leading to an accidental result. We
disagree.
Legal commentators have noted that consent is irrelevant in a murder
prosecution in Texas. See George E. Dix & John M. Schmolesky, 43 Texas Practice
Series: Criminal Practice & Procedure § 43.46 (3d ed. 2019) (“Consent is a criminal
7
law chameleon. It is irrelevant in some crimes, like murder . . . .”). Section 22.06
of the Texas Penal Code provides a limited defense of consent to assaultive
conduct—but only to the offenses of assault, aggravated assault, and deadly conduct.
PENAL § 22.06; see Dix & Schmolesky, § 43.46. The express language of
Section 22.06 precludes consent as a defense if the conduct inflicts serious bodily
injury. PENAL § 22.06; see Miller v. State, 312 S.W.3d 209, 213 (Tex. App.—
Houston [14th Dist.] 2010, pet. ref’d) (“The defense of consent is not available when
the defendant threatens or inflicts ‘serious bodily injury.’”) (citing PENAL
§ 22.06(a)(1)); Dix & Schmolesky, § 43.46. Furthermore, Professor LaFave notes
that a “rough sex” defense to a murder prosecution has generally not prevailed.
Wayne R. LaFave, 1 Substantive Criminal Law § 6.5(a) n.13 (3d ed. 2018)
(referencing “inducement of erotic asphyxiation” and citing Cheryl Hanna, Sex is
Not a Sport: Consent and Violence in Criminal Law, 42 B.C. L. REV. 239 (2001),
and George E. Buzash, The “Rough Sex” Defense, 80 J. CRIM. L. & CRIMINOLOGY
557, 563–68 (1989)). Thus, Appellant’s assertion that Allen consented to being
asphyxiated is irrelevant to our analysis.
Furthermore, the Texas Penal Code does not provide a defensive theory of
“accident.” See Rogers v. State, 105 S.W.3d 630, 637 (Tex. Crim. App. 2003) (citing
Williams v. State, 630 S.W.2d 640, 644 (Tex. Crim. App. 1982)). As noted in
Williams, “[t]here is no law and defense of accident in the present penal code, and
the bench and bar would be well advised to avoid the term ‘accident’ in connection
with offenses defined by the present penal code.” 630 S.W.2d at 644.
Appellant appears to be asserting that Allen’s death was an accident because
it was an unintended or unexpected result. As such, Appellant’s contention that
Allen’s death was an accident is a challenge to the mens rea required for her murder
conviction. See Rogers, 105 S.W.3d at 637–39; Williams, 630 S.W.2d at 644 (noting
that, under the former Penal Code, “accident” described multiple defenses, including
8
an unintended result). Appellant contends that the State’s evidence does not show
that she had the requisite mens rea to commit the offense of murder because the
evidence shows that Allen’s death was accidental and resulted from his participation
in consensual erotic asphyxia.
As noted previously, Appellant was charged with murder under all three
statutorily defined ways to commit the offense. Under each of these provisions, the
statutory focus, and, therefore, the gravamen of the offense, is causing the death of
an individual. Fraser v. State, 523 S.W.3d 320, 328 (Tex. App.—Amarillo 2017,
appellant’s pet. ref’d, State’s pet. granted). Thus, murder is a result-oriented
offense—meaning that the proscribed conduct must have caused the death of the
victim. Id.; see Martin v. State, 570 S.W.3d 426, 434 (Tex. App.—Eastland 2019,
pet. ref’d).
While the three ways to commit murder share a common gravamen, they
proscribe different forms of conduct. Furthermore, each statutory method for
committing murder has a different mens rea component. Under Section 19.02(b)(1),
the mens rea element requires that the accused must have intentionally or knowingly
caused the death of the victim. See Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim.
App. 1994). Thus, a conviction under Section 19.02(b)(1) requires an intent to cause
death. As such, Appellant’s contention that Allen’s death was an accident would
be relevant to a conviction under Section 19.02(b)(1) to the extent that it was an
unintended result.
Under Section 19.02(b)(2), the mens rea element requires only that the
accused must have intended to cause serious bodily injury to an individual. See
Cavazos v. State, 382 S.W.3d 377, 384 (Tex. Crim. App. 2012) (citing Lugo-
Lugo v. State, 650 S.W.2d 72, 81–82 (Tex. Crim. App. 1983)3). Thus,
3
Lugo-Lugo addressed Section 19.02(a)(2) of the Texas Penal Code. The version of
Section 19.02(a)(2) of the Texas Penal Code addressed by the court in Lugo-Lugo is identical to the current
Section 19.02(b)(2) under which this case was charged.
9
Appellant’s contention that Allen’s death was an accident would not be relevant to
a conviction under Section 19.02(b)(2) if there was a showing that Appellant
intended to cause serious bodily injury to Allen.
Murder under Section 19.02(b)(3) is known as “felony murder.” See
Rodriguez v. State, 454 S.W.3d 503, 507 (Tex. Crim. App. 2014). Felony murder is
the commission of a killing while in the course of committing another felony,
coupled with committing or attempting to commit an act “clearly dangerous to
human life.” PENAL § 19.02(b)(3). Felony murder is an unintentional murder
committed in the course of committing a felony. Threadgill v. State, 146 S.W.3d
654, 665 (Tex. Crim. App. 2004). The State must prove the elements of the
underlying felony, including the culpable mental state for that felony, but no
culpable mental state is required for the murder committed. Lomax v. State, 233
S.W.3d 302, 306–07 (Tex. Crim. App. 2007). Thus, the plain language of the felony
murder statute requires proof of the underlying felony, but it does not require any
proof of an accompanying mental state with regard to either causing the death of
another or committing an act clearly dangerous to human life. See id. at 307 & n.16.
Thus, Appellant could have been convicted of felony murder under
Section 19.02(b)(3) without a showing that she intended to kill Allen.
Appellant also asserts that the evidence is insufficient to show that she and
Walter caused Allen’s death. In a murder prosecution, the State must prove beyond
a reasonable doubt that the injuries inflicted by the defendant caused the death of the
decedent. Reeves v. State, 101 S.W.2d 245, 246 (Tex. 1937); Martin, 570 S.W.3d
at 434; Hutcherson v. State, 373 S.W.3d 179, 187 (Tex. App.—Amarillo 2012, pet.
ref’d). Appellant appears to be asserting that Allen’s consensual participation in
risky behavior constituted a concurring cause that precluded her criminal
responsibility for his death.
10
“A person is criminally responsible if the result would not have occurred but
for his conduct, operating either alone or concurrently with another cause, unless the
concurrent cause was clearly sufficient to produce the result and the conduct of the
actor clearly insufficient.” PENAL § 6.04(a). Under Section 6.04, a “but for” causal
connection must exist between the defendant’s conduct and the resulting harm to
find the defendant criminally responsible. Pena v. State, 522 S.W.3d 617, 624 (Tex.
App.—Houston [14th Dist.] 2017, pet. ref’d). If a concurrent cause is present, two
possible combinations exist to satisfy Section 6.04’s “but for” requirement: (1) the
defendant’s conduct may be sufficient by itself to have caused the harm, regardless
of the existence of a concurrent cause, or (2) the defendant’s conduct and a current
cause together may be sufficient to have caused the harm. Id. (citing Robbins v.
State, 717 S.W.2d 348, 351 (Tex. Crim. App. 1986)). However, a defendant cannot
be convicted if the concurrent cause is clearly sufficient, by itself, to produce the
result and the defendant’s conduct, by itself, is clearly insufficient. Id. Thus, if the
injuries caused by the defendant contributed to the death of the deceased, he is
responsible even though other contributing causes existed. Wright v. State, 388
S.W.2d 703, 706 (Tex. Crim. App. 1965); Martin, 570 S.W.3d at 434.
With these legal principles in mind, we first direct our attention to the offense
of murder under Section 19.02(b)(2). With respect to the mens rea element, a
conviction under Section 19.02(b)(2) requires a showing that the defendant acted
with the conscious objective or desire to create a substantial risk of death, serious
permanent disfigurement, or protracted loss or impairment of any bodily member or
organ. Lugo-Lugo, 650 S.W.2d at 81; see PENAL § 1.07(a)(46) (West Supp. 2018)
(defining “serious bodily injury”), § 6.03(a) (West 2011) (defining when a person
acts “intentionally”). Additionally, the State must show that the defendant
committed an act clearly dangerous to human life that caused the death of the
decedent. Lugo-Lugo, 650 S.W.2d at 81. This element requires that the act intended
11
to cause serious bodily injury must be “objectively clearly dangerous to human life.”
Id.
Dr. Tasha Greenberg, a deputy medical examiner at the Tarrant County
Medical Examiner’s Office, performed an autopsy on Allen’s body. Dr. Greenberg
testified that she observed multiple areas of bleeding “into the muscles of the front
of the neck,” along with a fracture of the thyroid cartilage, specifically the right
cornu. There were also lacerations of the lower lip. Dr. Greenberg determined that
the cause of death was asphyxia, which she described as a lack of oxygen to the
brain. The evidence of injury to the neck indicated to her that there was a
“compression of the vessels in the neck.” Dr. Greenberg also testified that there was
a likelihood that pressure was applied to Allen’s chest or back.
Dr. Greenberg did not see any evidence that the USB cord that was found
around Allen’s neck was used as a ligature. In this regard, this cord was somewhat
loose around Allen’s neck. Dr. Greenberg testified that the lack of an imprint on
Allen’s neck indicated that a broader or softer object was used to asphyxiate Allen.
Two pieces of a braided leather belt were found near Allen’s body. Allen’s
fiancée testified that this belt was neither her belt nor Allen’s belt. Allen’s father
testified that this belt was smaller than the belts found inside the home that belonged
to Allen. DNA testing of both ends of the belt revealed the presence of DNA from
three contributors, and Appellant and Walter could not be excluded as the
contributors. Additionally, Allen could not be excluded as a contributor of DNA on
one end of the belt. Walter could not be excluded as a contributor of DNA found on
swabs taken from Allen’s neck, and Walter’s DNA was also not excluded from DNA
recovered from the USB cords wrapped around Allen’s wrists.
Dr. Greenberg determined that the manner of death was homicide.
“Homicide” is generally defined as “[t]he killing of one person by another.”
Homicide, BLACK’S LAW DICTIONARY (10th ed. 2014). She testified that choking
12
someone to render him or her unconscious would be an act that would be clearly
dangerous to human life and that choking someone to the point of unconsciousness
could result in serious bodily injury. She further opined that voluntary choking is
dangerous.
Dr. Greenberg’s testimony that choking someone to the point of
unconsciousness could constitute serious bodily injury is consistent with caselaw
finding that the act of choking a person can constitute serious bodily injury. We
determined in Akbar v. State, 660 S.W.2d 834, 835–36 (Tex. App.—Eastland 1983,
pet. ref’d), that the act of choking a person to the point that they almost blacked out
could constitute evidence of serious bodily injury because the jury could draw the
inference that the act created a substantial risk of death. In Akbar, we cited
Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. 1982), for the proposition
that it is common knowledge that the throat is a particularly vulnerable part of the
body. Id. at 836.
Relying upon Akbar, we determined in Comeaux v. State, No. 11-10-00308-
CR, 2012 WL 2045950, at *2 (Tex. App.—Eastland June 7, 2012, pet. ref’d) (mem.
op., not designated for publication), that choking a person to the point of
unconsciousness can constitute serious bodily injury. We noted testimony in
Comeaux from an emergency room physician to the effect that choking someone
creates a substantial risk of death because it carries the risk of breaking the hyoid
bone, which stabilizes the windpipe and voice box, as well as the risk of brain
damage. In Comeaux, we also cited cases from other courts finding that the act of
choking a person to the point of unconsciousness constitutes serious bodily injury.
2012 WL 2045950, at *2 (citing Chavez v. State, No. 04-07-00741-CR, 2008
WL 5050549, at * 2 (Tex. App.—San Antonio Nov. 26, 2008, pet. ref’d) (mem. op.,
not designated for publication) (relying on Akbar); In re J.A.P., No. 03-02-00112-
CV, 2002 WL 31317256, at *3 (Tex. App.—Austin Oct. 17, 2002, no pet.) (not
13
designated for publication) (victim choked to the point of unconsciousness, and
Akbar cited in holding that choking created a substantial risk of death and, thus, was
serious bodily injury); Kaufman v. State, No. 13-01-507-CR, 2002 WL 34230974,
at *2–3 (Tex. App.—Corpus Christi Aug. 22, 2002, no pet.) (choking of victim
created substantial risk of death)).
As we previously noted, consent is not a defense to a murder prosecution.
Thus, while Dr. Greenberg could not rule out that Allen died during a sex act that he
consented to, that fact is irrelevant to our analysis. Viewing the evidence in the light
most favorable to the jury’s verdict, a rational factfinder could have determined that
Appellant and Walter intentionally caused seriously bodily injury to Allen by
choking him to the point of unconsciousness and, ultimately, death. See Akbar, 660
S.W.2d at 835–36. Furthermore, choking a person to death is objectively an act that
is clearly dangerous to human life. See Lugo-Lugo, 650 S.W.2d at 81.
Additionally, even if we assume that Allen initially consented to being
asphyxiated to some degree and that consent could be a valid concurrent cause under
the law, the evidence in this case would permit a rational factfinder to determine that
Appellant’s and Walter’s conduct was, at a minimum, a concurrent cause of Allen’s
death. As noted above, Allen was found with his hands bound behind his back. The
evidence indicates that the device used to choke him was not around his neck at the
time that his body was discovered. Accordingly, under Section 19.02(b)(2), the
evidence was sufficient to support Appellant’s conviction for murder.
The evidence in this case, when viewed in the light most favorable to the
jury’s verdict, also supports a finding under Section 19.02(b)(1) that Appellant and
Walter intentionally caused Allen’s death. Mental culpability is a question of fact
to be determined by the jury from all the facts and circumstances in evidence.
Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim. App. 1974). Intent is of such a
nature that it is most often proven through circumstantial evidence surrounding the
14
crime. Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991). As
recently noted by the Texas Court of Criminal Appeals:
By its nature, a culpable mental state must generally be inferred
from the circumstances. We cannot read an accused’s mind, and absent
a confession, we must infer his mental state from his “acts, words and
conduct.” The culpable mental state for murder can be inferred from a
defendant’s motive, his attempts to conceal the body, and implausible
explanations to the police. The defendant’s culpable mental state may
also be inferred from the extent of the victim’s injuries.
Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018) (footnotes omitted).
The specific intent to cause death is often inferred from the use of a deadly
weapon. See Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). This
case does not involve the use of a deadly weapon per se. However, the circumstances
surrounding Allen’s death supports an inference that Appellant and Walter intended
to cause Allen’s death. We first note that, when Appellant texted Walter about Allen,
she texted: “We MUST do it and do it hard.” Allen was found with his hands bound
behind his back. The device used to choke him was not around his neck at the time
his body was discovered. The State theorized that the braided leather belt that was
found near Allen’s body was the murder weapon, and the State’s theory was
consistent with Dr. Greenberg’s theory of the instrument used to asphyxiate Allen.
Assuming the braided leather belt was used in this manner, it was used to the extent
that it broke into two pieces. Furthermore, Appellant and Walter could not be
excluded as the contributors of the DNA from either end of the belt. Additionally,
Dr. Greenberg opined that there was a likelihood that pressure was applied to Allen’s
chest or back. Thus, Appellant and Walter did not just choke Allen—they choked
him to death. Viewing the evidence in the light most favorable to the verdict, a
rational jury could have determined that Appellant and Walter intended to cause
Allen’s death.
15
In her sixth issue, Appellant also challenges the sufficiency of the evidence
for her conviction for robbery. The indictment alleged that, while in the course of
committing a theft, and with the intent to obtain and maintain control over property,
to wit: a police badge, an ASP baton, or a Taser, Appellant intentionally, knowingly,
or recklessly caused bodily injury to Allen. As relevant to this case, Section 29.02
of the Penal Code provides that a person commits the offense of 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.” PENAL § 29.02(a)(1). Theft is the unlawful appropriation of property
“with intent to deprive the owner of the property.” Id. § 31.03(a). “‘In the course
of committing theft’ means conduct that occurs in an attempt to commit, during the
commission, or in immediate flight after the attempt or commission of theft.” Id.
§ 29.01(1).
“Robbery is a form of assault.” Ex parte Hawkins, 6 S.W.3d 554, 560 (Tex.
Crim. App. 1999). The gravamen of the offense of robbery is the assaultive conduct
against the victim. Jones v. State, 323 S.W.3d 885, 889 (Tex. Crim. App. 2010).
Appellant asserts that the State failed to establish that she caused bodily injury to
Allen while acting with the requisite mens rea. She contends that the theft of
property in this case was of a spontaneous nature and was not necessarily
premeditated.
The factor that “elevates the occurrence of theft to robbery is the presence, at
the time of, or prior to, the [causation of bodily injury], of the intent to obtain or
maintain control of the victim’s property.” Nelson v. State, 848 S.W.2d 126, 132
(Tex. Crim. App. 1992); see Cooper v. State, 67 S.W.3d 221, 223 (Tex. Crim. App.
2002) (quoting Nelson). Thus, in a robbery case, there must be a nexus between the
assault and the theft. Sorrells v. State, 343 S.W.3d 152, 157 (Tex. Crim. App. 2011)
(citing Cooper, 67 S.W.3d at 223). This connection may be inferred when both
16
offenses occur in close temporal proximity. Cooper, 67 S.W.3d at 224. “The general
rule is still that a theft occurring immediately after an assault will support an
inference that the assault was intended to facilitate the theft.” Id.; see Sorrells, 343
S.W.3d at 157–58.
Robbery is not one of the three enumerated offenses to which the statutory
defense of consent applies. PENAL § 22.06(a). Accordingly, Appellant’s assertion
that Allen consented to being choked is not legally relevant to our analysis of her
robbery conviction. As we have previously determined, the evidence establishes
that Allen was intentionally choked to the point of unconsciousness and, ultimately,
death. This evidence supports a finding of bodily injury. In fact, this evidence
supports a finding of serious bodily injury and murder. The general rule
acknowledged in Cooper is applicable to this case because the theft of property
occurred immediately after the assault, thus giving rise to an inference that the
assault was intended to facilitate the theft. Cooper, 67 S.W.3d at 224.
Additionally, we have evidence that Appellant and Walter were in dire
financial straits. As noted by the Texas Court of Criminal Appeals in Nelson, a
defendant’s financial difficulties provide a basis for a rational trier of fact to
conclude that the defendant had a motive to commit theft either prior to or at the
time of an assault. 848 S.W.2d at 132. Appellant used threatening language with
Walter in the text messages between the two urging him to “fix” their financial
situation, including engaging in illegal activities. In fact, Appellant earlier told
Walter to “[c]hoke him” in reference to an unknown male when Walter texted
Appellant that the unknown male “can’t/won’t help.”
Furthermore, when Appellant informed Walter about Allen, she referred to
Allen as “that Clyde lick.” Appellant contends that her use of “lick” was prostitution
parlance. However, the State presented evidence that a “lick” refers to robbery or
thievery. Furthermore, several published cases refer to the term “lick” as involving
17
robbing or stealing. Walter v. State, 267 S.W.3d 883, 887 (Tex. Crim. App. 2008);
Amador v. State, 376 S.W.3d 339, 341 (Tex. App.—Houston [14th Dist.] 2012, pet.
ref’d); Medina v. State, 367 S.W.3d 470, 473 (Tex. App.—Texarkana 2012, no pet.).
Viewing the combined and cumulative force of all the evidence in the light most
favorable to the verdict, a jury could rationally infer that Appellant and Walter
assaulted Allen during the course of committing theft with the intent to obtain
control over Allen’s property. See Jackson, 443 U.S. at 319; Sorrells, 343 S.W.3d
at 156.
We overrule Appellant’s sixth issue challenging the sufficiency of the
evidence supporting her convictions for murder and robbery.
Charge on the Law of Parties
In her seventh issue, Appellant asserts that the trial court erred in giving an
instruction on the law of parties for murder, robbery, and theft because there was
insufficient evidence that she was criminally responsible for Walter’s conduct. She
contends that there is insufficient evidence that she had the specific intent to promote
or assist Walter in the commission of the offenses. While Appellant asserts that
there is a lack of evidence of her status as a party, she does not seek an acquittal of
her conviction on this basis under Jackson v. Virginia. See Swearingen v. State, 101
S.W.3d 89, 95 (Tex. Crim. App. 2003) (noting that an appellate acquittal is the
remedy for a successful challenge to the legal sufficiency of the evidence under
Jackson v. Virginia); see also Wooley v. State, 273 S.W.3d 260, 268 & nn.12–13
(Tex. Crim. App. 2008). Instead, Appellant asserts that there was an error in the jury
charge that requires a reversal and remand for a new trial.
We review a claim of jury charge error using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). See State v.
Ambrose, 487 S.W.3d 587, 594 (Tex. Crim. App. 2016). Our first duty in analyzing
a jury charge issue is to decide whether error exists. Arteaga v. State, 521 S.W.3d
18
329, 333 (Tex. Crim. App. 2017) (citing Barrios v. State, 283 S.W.3d 348, 350 (Tex.
Crim. App. 2009)). If error exists, we must determine whether the error caused
sufficient harm to warrant reversal. Id. If a timely objection was lodged at trial,
reversal is required if the error resulted in “some harm” to the defendant. Elizondo v.
State, 487 S.W.3d 185, 204 (Tex. Crim. App. 2016). Appellant objected to the
inclusion of the instruction on the law of parties in the trial court’s charge based on
her contention that there was no evidence to support its submission. 4 Appellant
asserts that she has suffered some harm requiring reversal. Because we conclude
that the trial court’s charge was not erroneous in this case, we do not conduct a harm
analysis. See Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015) (citing
Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012)).
Generally, the trial court may instruct the jury on the law of parties if “there
is sufficient evidence to support a jury verdict that the defendant is criminally
responsible under the law of parties.” Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim.
App. 1999). “Regardless of whether it is pled in the charging instrument, liability
as a party is an available legal theory if it is supported by the evidence.” In re State
ex rel. Weeks, 391 S.W.3d 117, 124 (Tex. Crim. App. 2013). The State does not
have to prove it is correct regarding the defendant’s participation as a party; instead,
the State must only show that the evidence raises the issue to be entitled to its
submission. Id. at 125. Thus, a trial court errs by submitting an instruction under
the law of parties if the evidence adduced at trial would not support a jury verdict
under the law of parties. Ladd, 3 S.W.3d at 564.
4
Appellant did not object to the particular manner in which the trial court’s charge addressed her
status as a party in an attempt to narrow or modify the language of the charge. See Ferreira v. State, 514
S.W.3d 297, 302 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (citing Vasquez v. State, 389 S.W.3d
361, 368 (Tex. Crim. App. 2012)).
19
The jury is entitled to consider the events that took place before, during, and
after the commission of the crime. See Paredes v. State, 129 S.W.3d 530, 536 (Tex.
Crim. App. 2004); Goff v. State, 931 S.W.2d 537, 545 (Tex. Crim. App. 1996).
“There must be sufficient evidence of an understanding and common design to
commit the offense.” Gross v. State, 380 S.W.3d 181, 186 (Tex. Crim. App. 2012)
(citing Guevara, 152 S.W.3d at 49). “Each fact need not point directly to the guilt
of the defendant, as long as the cumulative effect of the facts are sufficient to support
the conviction under the law of parties.” Id. (citing Guevara, 152 S.W.3d at 49).
Mere presence of a person at the scene of a crime—either before, during, or after the
offense—or even flight from the scene, without more, is insufficient to sustain a
conviction as a party to the offense; however, combined with other incriminating
evidence, it may be sufficient to sustain a conviction. Thompson v. State, 697
S.W.2d 413, 417 (Tex. Crim. App. 1985); accord Gross, 380 S.W.3d at 186.
Additionally, allegations that a party is guilty under the law of parties need not be
specifically pleaded in the indictment. See Barrera v. State, 321 S.W.3d 137, 144
n.1 (Tex. App.—San Antonio 2010, pet. ref’d).
As noted previously, the trial court’s charge provided that Appellant was
criminally responsible for Walter’s conduct under the law of parties if she
intentionally promoted or assisted the commission of the charged offenses by
soliciting, encouraging, directing, aiding, or attempting to aid Walter to commit the
charged offenses. See PENAL § 7.02(a)(2). Prior to the commission of the offenses,
Appellant was the one who initiated and maintained contact with Allen through
Craigslist. Additionally, Appellant sent text messages to Walter before meeting
Allen; from these messages, a jury could have reasonably inferred that the couple
planned to rob and possibly even murder Allen. See Gross, 380 S.W.3d 186 (to
prove party status, there must be “sufficient evidence of an understanding and
common design to commit the offense”).
20
Appellant was present at the scene of the crime: another circumstance relevant
for proving party status. See Medellin v. State, 617 S.W.2d 229, 231 (Tex. Crim.
App. 1981). There was also DNA evidence from which the jury could have inferred
that both Appellant and Walter asphyxiated Allen. Additionally, on the day that
Allen died, Appellant deleted the e-mail account she used to communicate and set
up the rendezvous with Allen. She also accompanied Walter to the pawn shop to
sell Allen’s and Allen’s fiancée’s belongings. Moreover, she sent text messages that
evening that suggested she was involved in the sale of Allen’s stolen police
equipment. Thus, the evidence as a whole shows that Appellant and Walter actively
participated in the asphyxiation of Allen and the underlying offenses. Therefore, we
hold that there was sufficient evidence from which a jury could have inferred that
Appellant was a party to the offenses of murder, robbery, and theft.
Moreover, if the evidence “clearly supports a defendant’s guilt as a principal
actor, any error of the trial court in charging on the law of parties is harmless.” Ladd,
3 S.W.3d at 564–65 (quoting Black v. State, 723 S.W.2d 674, 675 (Tex. Crim. App.
1986)). An appellant is not harmed by the inclusion of an instruction on the law of
parties if the jury “almost certainly did not rely upon the parties instruction in
arriving at its verdict, but rather based the verdict on the evidence tending to show
appellant’s guilt as a principal actor.” Id. at 565. If guilt as a party would be “an
irrational finding under the evidence, then it is highly unlikely that a rational jury
would base its verdict on a parties theory.” Cathey v. State, 992 S.W.2d 460, 466
(Tex. Crim. App. 1999). As discussed above, the evidence was sufficient to establish
Appellant’s guilt as a primary actor. Thus, even if we assume error in the jury charge
by the inclusion of the instruction on the law of parties, the error is harmless because
the evidence supports Appellant’s guilt as a primary actor. See Cathey, 992 S.W.2d
at 466. We overrule Appellant’s seventh issue.
21
Admissibility of Text Messages
In her first issue, Appellant contends that the trial court erred by admitting
approximately 900 text messages recovered from her cell phone that she either sent
or received over a four-day period. She contends that the admission of these text
messages violated Rules 402, 403, and 404(b) of the Texas Rules of Evidence. See
TEX. R. EVID. 402, 403, 404(b).
Whether to admit evidence at trial is a preliminary question to be decided by
the trial court. TEX. R. EVID. 104(a); Tienda v. State, 358 S.W.3d 633, 637–38 (Tex.
Crim. App. 2012). We review a trial court’s ruling on the admissibility of evidence
for an abuse of discretion. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App.
2007). We will uphold the trial court’s decision unless it lies outside the zone of
reasonable disagreement. Id. (citing Montgomery v. State, 810 S.W.2d 372, 391
(Tex. Crim. App. 1991)).
The State sought to offer a thirty-one-page document containing the text
messages. This document contained the cell phone numbers of the sender and the
receiver of the text messages, the date and time of the text messages, and the content
of the text messages. Walter initially lodged a general relevancy objection to the
entire body of text messages. The trial court advised Walter’s counsel that he would
need to identify the specific text messages to which Walter objected and the reason
for the objections. Walter’s counsel responded that it would take “all day” to identify
the text messages that were not relevant.
The prosecutor responded to the general relevancy objection by asserting that
the whole body of the text messages revealed that Appellant engaged in “habitual
texting” during the four-day period with the exception of a “dead period” during the
time that Appellant and Walter were at Allen’s house. The prosecutor further
advised the trial court that the content of the text messages was the most important
22
aspect of them. The prosecutor specified that the text messages between Appellant
and Walter were the most important ones.
Walter’s counsel then identified specific text messages to which he objected
under Rule 403 on the basis that they were “extremely prejudicial.” Walter’s counsel
also objected to specific text messages on the basis that the State had not provided
notice of its intent to offer the text messages as extraneous offenses under
Rule 404(b).
At the conclusion of Walter’s counsel presenting objections to the text
messages, Appellant’s trial counsel advised the trial court that Appellant was making
the same objections. See Martinez v. State, 833 S.W.2d 188, 191 (Tex. App.—
Dallas 1992, pet. ref’d) (citing Woerner v. State, 576 S.W.2d 85, 86 (Tex. Crim.
App. 1979)) (A defendant may preserve error by adopting a codefendant’s objections
provided there is sufficient indication in the record of his intent to adopt the
objections.); see also Enlow v. State, 46 S.W.3d 340, 346 (Tex. App.—Texarkana
2001, pet. ref’d). The trial court overruled all of the objections and admitted the
document with the text messages. The prosecutor subsequently requested a police
officer to read approximately sixty-five text messages to the jury.
Rule 401 provides that evidence is “relevant” if “it has any tendency to make
a fact more or less probable than it would be without the evidence” and if “the fact
is of consequence in determining the action.” TEX. R. EVID. 401. Relevant evidence
is generally admissible whereas “[i]rrelevant evidence is not inadmissible.” TEX. R.
EVID. 402.
With respect to Appellant’s general relevancy objection, the Texarkana Court
of Appeals recently addressed a similar objection in Kelso v. State. 562 S.W.3d 120,
136 (Tex. App.—Texarkana 2018, pet. ref’d). The defendant in Kelso objected on
the ground of relevancy to “a hundred thousand some odd text messages.” Id. Like
Appellant in this appeal, the defendant in Kelso asserted that the State needed to
23
offer individual text messages rather than offer the whole body of the text messages.
Id. The Texarkana court determined that the defendant did not preserve error
because she did not specifically point out which text messages were inadmissible.
Id. The court cited Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009),
for the following proposition: “When an exhibit contains both admissible and
inadmissible evidence, the burden is on the objecting party to specifically point out
which portion is inadmissible.” Id.; see Richter v. State, 482 S.W.3d 288, 298 (Tex.
App.—Texarkana 2015, no pet.). As further noted by the court: “A trial court is not
obligated to search through an exhibit and segregate the admissible evidence from
the inadmissible.” Kelso, 562 S.W.3d at 136 (citing Whitaker, 286 S.W.3d at 369).
“Instead, ‘the trial court may safely admit it or exclude it all, and the losing party,
no matter who he is, will be made to suffer on appeal the consequences of his
insufficiently specific offer or objection.’” Id. (quoting Richter, 482 S.W.3d at 298).
We agree with the reasoning in Whitaker and Kelso. By failing to identify
specific text messages that she asserted were irrelevant, Appellant failed to preserve
error on her general relevancy objection. Furthermore, the whole body of text
messages for the four-day period was relevant to establish Appellant’s and Walter’s
involvement in the activities that occurred at Allen’s home on the afternoon of
August 31 because there was no texting activity for an approximately 106-minute
period that afternoon.
“Rule 403 favors the admission of relevant evidence and carries a presumption
that relevant evidence [is] more probative than prejudicial.” Hayes v. State, 85
S.W.3d 809, 815 (Tex. Crim. App. 2002) (citing Montgomery, 810 S.W.2d at 376).
When we review a trial court’s determination under Rule 403, we reverse the trial
court’s judgment “rarely and only after a clear abuse of discretion.” Mozon v. State,
991 S.W.2d 841, 847 (Tex. Crim. App. 1999) (quoting Montgomery, 810 S.W.2d at
392). An analysis under Rule 403 includes, but is not limited to, the following
24
factors: (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. Hernandez v. State, 390 S.W.3d 310,
324 (Tex. Crim. App. 2012); Shuffield v. State, 189 S.W.3d 782, 787 (Tex. Crim.
App. 2006). Rule 403, however, does not require that the balancing test be
performed on the record. Greene v. State, 287 S.W.3d 277, 284 (Tex. App.—
Eastland 2009, pet. ref’d). By its express terms, evidence is not excludable under
Rule 403 for merely being prejudicial—the rule applies to evidence that is unfairly
prejudicial. Evidence is unfairly prejudicial when it has an undue tendency to
suggest an improper basis for reaching a decision. Reese v. State, 33 S.W.3d 238,
240 (Tex. Crim. App. 2000); Render v. State, 347 S.W.3d 905, 921 (Tex. App.—
Eastland 2011, pet. ref’d).
Appellant additionally asserts on appeal that the whole body of text messages
should have been excluded under Rule 403. Walter’s counsel also lodged an
objection that admitting the entire body of text messages would confuse the jury. As
was the case with the general relevancy objection, the Rule 403 objection to the
entire body of text messages did not preserve error for appellate review. See
Whitaker, 286 S.W.3d at 369; Kelso, 562 S.W.3d at 136.
Appellant also asserts on appeal that many of the text messages contained
references to illegal drug activity and prostitution and that they contained prejudicial
sexual content and profanity. Based on these contentions, Appellant contends that
the admission of many of the text messages violated Rule 403 and that their
admission was for an improper purpose under Rule 404(b). Neither Appellant nor
Walter presented these complaints to the trial court. Specifically, the defendants did
not object to the text messages on the basis that they contained evidence of drug
activity or prostitution. Accordingly, these complaints were not preserved for
appellate review. See TEX. R. APP. P. 33.1.
25
We direct our attention to the specific text messages to which Walter’s counsel
objected. Counsel objected to a text message sent from Appellant’s phone at 9:59
a.m. on August 31, 2015, to Walter, which read: “Choke him.” Appellant texted this
message in response to a text message from Walter that stated: “He can’t/won’t
help.” Walter’s counsel asserted that the “choke him” text message was “extremely
prejudicial” and that it was devoid of context. Walter’s counsel also asserted that
the State did not give notice under Rule 404(b) of its intent to rely on this text
message. He asserted that the “choke him” text message was subject to the notice
requirement of Rule 404(b) because it appeared that Appellant was trying to
encourage Walter to commit a felony assault.
Walter’s counsel next challenged a text message that Appellant sent Walter at
1:10 p.m. on August 31, 2015, which read: “You NEED to do this. Your fear of a
police report versus LOSING us should be bigger. Your need to feed and house
your CHILDREN should be bigger tha[n] ANYTHING else. So swallow being a p-
--y and use your b---s to go f--k someone hard enough that your loved ones aren’t
getting raped.” Walter’s counsel asserted that this text message was without context,
that its probative value was low, and that its prejudicial value was high. He sought
the exclusion of this text message under Rule 403. He also asserted that the State
had not complied with the notice requirement of Rule 404(b), which he asserted was
necessary because it appeared that, in the text message, Appellant was encouraging
Walter to commit a crime.
With respect to the “choke him” text message, we previously addressed the
relevancy of this text message in our review of the sufficiency of the evidence. We
noted that this text message was indicative of the Walters’ dire financial situation
and Appellant’s pleas to Walter to “fix” their desperate financial circumstances.
There is no question that the “choke him” text message was prejudicial. The bigger
questions are whether it was unfairly prejudicial and, if so, whether its probative
26
value was substantially outweighed by the danger that it was unfairly prejudicial.
We conclude that the trial court did not abuse its discretion by answering both of
these questions in the negative. Appellant sent the “choke him” text message to
Walter approximately six hours prior to meeting with Allen. She sent it in response
to a message from Walter saying that a person “can’t/won’t help.” The text message
indicates the desperate measures Appellant wanted Walter to take on the day of
Allen’s death to remedy their financial situation.
The “you NEED to do this” text message is less prejudicial than the “choke
him” text message. Appellant sent this text message to Walter approximately two
and one-half hours prior to the meeting with Allen. It followed several text messages
from Appellant to Walter wherein she told him: “Hurry up and fix this,” “Fix this
ALL, Phillip,” “DO SOMETHING NOW,” and “I’ve already TOLD you what you
need to do.” The “you NEED to do this” text message was relevant to show the
Walters’ financial situation and also indicated the desperate measures that Appellant
wanted to take. As was the case with the “choke him” text message, we conclude
that the trial court did not abuse its discretion by overruling Appellant’s Rule 403
objection to the “you NEED to do this” text message.
With respect to the Rule 404(b) objections, neither Appellant nor Walter
objected to the two text messages on the basis that the State sought to offer the
messages for an improper purpose under Rule 404(b). Instead, Walter’s counsel
asserted that the State failed to give notice as required by Rule 404(b) of its intent to
offer the extraneous offenses counsel alleged are reflected in the two text messages.
Rule 404(b)(2) allows admission of certain extraneous offenses, provided that, “[o]n
timely request by a defendant in a criminal case, the prosecutor must provide
reasonable notice before trial that the prosecution intends to introduce such
evidence—other than that arising in the same transaction—in its case-in-chief.”
TEX. R. EVID. 404(b)(2); see Hayden v. State, 66 S.W.3d 269, 271 (Tex. Crim. App.
27
2001). The State asserts that Appellant did not make a timely request for notice
under Rule 404(b). Our review of the record does not indicate that Appellant made
a request for notice under Rule 404(b) as required by the rule. Accordingly,
Appellant waived notice pursuant to the rule. See Espinosa v. State, 853 S.W.2d 36,
38 (Tex. Crim. App. 1993).
Irrespective of the absence of a request from Appellant for notice under
Rule 404(b), the trial court did not abuse its discretion by determining that the two
texts did not contain information about extraneous offenses or acts as contemplated
by Rule 404(b). To implicate Rule 404(b), there must be actual conduct that alone
or in combination with these thoughts could constitute a bad act, wrong, or crime.
Massey v. State, 933 S.W.2d 141, 154 (Tex. Crim. App. 1996). Statements about
anticipated acts are mere inchoate thoughts that are not excludable under
Rule 404(b). Moreno v. State, 858 S.W.2d 453, 463 (Tex. Crim. App. 1993). The
two text messages challenged by Appellant did not address past acts but, rather,
concerned future acts that Appellant anticipated or expected Walter to perform. We
overrule Appellant’s first issue.
Appellant’s third issue also concerns the text messages that the trial court
admitted into evidence. She contends that the trial court abused its discretion by
overruling her objection to any text message that she received from someone else.
She asserted that the admission of these text messages would violate her Sixth
Amendment right to confrontation. We disagree.
The Sixth Amendment to the United States Constitution provides, in relevant
part, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him.” U.S. CONST. amend. VI. The
Confrontation Clause bars the admission of out-of-court testimonial hearsay
statements of a witness unless (1) the witness is unavailable to testify and (2) the
defendant had a prior opportunity to cross-examine the witness. Crawford v.
28
Washington, 541 U.S. 36, 53–54 (2004); Render, 347 S.W.3d at 917. “Post-
Crawford, the threshold question in any Confrontation Clause analysis is whether
the statements at issue are testimonial or nontestimonial in nature.” Render, 347
S.W.3d at 917.
Generally speaking, a hearsay statement is testimonial when the surrounding
circumstances objectively indicate that the primary reason the statement was made
was to establish or prove past events potentially relevant to later criminal
prosecution. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008)
(citing Davis v. Washington, 547 U.S. 813, 822–23 (2006)). The Supreme Court has
not provided a comprehensive definition to be used when determining whether
statements are testimonial. Id.; Wells v. State, 241 S.W.3d 172, 175 (Tex. App.—
Eastland 2007, pet. ref’d). However, it has identified three kinds of statements that
could be regarded as testimonial: (1) ex parte in-court testimony or its functional
equivalent that declarants would reasonably expect to be used prosecutorially;
(2) statements contained in formalized testimonial materials, such as affidavits,
depositions, prior testimony, or confessions; and (3) statements that were made
under circumstances that would lead an objective witness to reasonably believe that
the statements would be available for use at a later trial. Langham v. State, 305
S.W.3d 568, 576 (Tex. Crim. App. 2010). We review a Confrontation Clause ruling
de novo. See De La Paz, 273 S.W.3d at 680.
“Testimonial” statements are typically solemn declarations made for the
purpose of establishing some fact. See Russeau v. State, 171 S.W.3d 871, 880 (Tex.
Crim. App. 2005). The text messages in this case are informal, and their subject and
method of communication weigh against a finding that they are testimonial
statements. See Crawford, 541 U.S. at 51 (noting that testimonial statements are
typically “formalized” materials that “were made under circumstances which would
lead an objective witness reasonably to believe that the statement would be available
29
for use at a later trial” as opposed to informal text messages); Bryant v. State, No. 01-
14-00963-CR, 2015 WL 9478194, at *5–6 (Tex. App.—Houston [1st Dist.] Dec. 29,
2015, pet. ref’d.) (mem. op., not designated for publication) (same). Furthermore,
many of the text messages were between Appellant and Walter, and the
communications concerned their interaction with Allen. A coconspirator’s
statements in furtherance of the conspiracy are generally considered nontestimonial.
See Crawford, 541 U.S. at 56. Accordingly, the trial court did not err by overruling
Appellant’s Confrontation Clause objection to the admission of the text messages.
We overrule Appellant’s third issue.
Authentication of Deleted Text Messages
In her second issue, Appellant argues that the State did not properly
authenticate three deleted text messages recovered from her phone. Christian
Ledbetter, a DPS agent assigned to the Secret Service, performed a forensic
examination of Appellant’s cell phone. Using computer software, he recovered the
three deleted text messages from the phone. These deleted text messages were sent
from Appellant’s phone: “[H]e’ll do the handheld plus clips for $275,” “You’d kept
the Taser tho,” and “Well, a Taser.” Agent Ledbetter was unable to determine to
whom the first two deleted text messages were sent. The third text message was sent
to someone referred to as “Archangel” in Appellant’s cell phone.
Walter’s counsel objected to the deleted text messages on the basis that
Agent Ledbetter did not know the identity of the parties to the conversations
involving the deleted text messages. Appellant’s counsel made the same objection.
The trial court overruled these objections. Appellant asserts that the trial court erred
in overruling the authenticity objection because the link to Appellant authoring these
deleted texts was too tenuous.
To properly authenticate a piece of evidence, “the proponent must produce
evidence sufficient to support a finding that the item is what the proponent claims it
30
is.” TEX. R. EVID. 901(a). It is within the jury’s purview to “determine whether an
item of evidence is indeed what its proponent claims; the trial court need only make
the preliminary determination that the proponent of the item has supplied facts
sufficient to support a reasonable jury determination that the proffered evidence is
authentic.” Butler v. State, 459 S.W.3d 595, 600 (Tex. Crim. App. 2015) (citing
Tienda, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012)); see TEX. R. EVID. 104(a).
We review a trial court’s threshold determination of authenticity under an abuse of
discretion standard. Butler, 459 S.W.3d at 600.
Appellant cites Butler for the proposition that Agent Ledbetter did not provide
enough information to establish Appellant as the author of the deleted text messages.
We first note that the State did not offer the deleted text messages as being authored
by Appellant but, rather, offered them as simply being recovered from her cell
phone. The trial court made this distinction when it admitted the deleted text
messages. “As with other types of evidence, text messages may be authenticated by
‘evidence sufficient to support a finding that the matter is what its proponent
claims.’” Id. at 600–01 (quoting former version of TEX. R. EVID. 901(a)).
Authentication of text messages may “be accomplished in myriad ways,” including
through the testimony of a witness with knowledge. Id. Agent Ledbetter testified
in detail about the process he used to recover the messages from Appellant’s cell
phone. On this record, the trial court did not abuse its discretion by determining that
Agent Ledbetter supplied sufficient evidence authenticating what the State claimed
the evidence to be.
Moreover, the record does not demonstrate that Appellant was harmed by the
admission of the deleted text messages. The same words of all three deleted text
messages appear in the transcript of the text messages that we addressed in
considering Appellant’s first and third issues. Additionally, the first deleted text
message was a reference to Allen’s firearm and the Walters’ efforts to sell it. There
31
were other references to the firearm in the text messages, including a text message
near the same time, which read: “I can get that sold for $275-just the pow pow.” The
second and third messages referred to the stolen Taser. There was a text message
stating: “Leaves you with the electrifying one,” after the text message referencing
the sale of the “pow pow” for $275. Additionally, there was a text message sent on
September 3, 2015, specifically referencing the Taser. Finally, an acquaintance of
the Walters, Tad Womack, testified that he received a phone call from Walter at 5:03
p.m. on August 31, 2015, wherein Walter asked Womack if he would like to
purchase some items from a police belt, including an “officer’s issued handgun” and
a Taser. We overrule Appellant’s second issue.
Motions for Continuance
In her fourth issue, Appellant contends that the trial court abused its
discretion by denying her first motion for continuance for additional time to obtain
certain e-mails from Allen’s e-mail account. In her fifth issue, Appellant asserts that
the trial court erred in denying her second motion for continuance for additional time
to find Allen’s missing cell phone. In both issues, Appellant contends that she
was prejudiced because the missing evidence was critical to establishing
her defensive theory at trial: “that Allen’s death was an accident which
occurred during a consensual erotic asphyxia encounter.”
The Walters filed a “Joint Motion for Exculpatory Evidence
and For Continuance to Obtain Same” a week prior to trial. We will refer to
this motion as Appellant’s first motion for continuance. The Walters asserted
in this first motion that they needed additional time to secure e-mails from Allen’s
e-mail account that he used to communicate with Appellant through
Craigslist. The Walters claimed that Allen used this account to engage in “high-
risk” sex, and they sought Allen’s e-mails dating back to March 1, 2015. They
claimed Allen’s sexual practices were “material” to the case because they
32
“contradict the Government’s theory that the Defendants intentionally or knowingly
killed the Deceased.” In the motion, the Walters stressed the need for additional
time because they could not obtain Allen’s e-mails from Google without the State’s
assistance.
The reporter’s record does not contain a transcript of a hearing on the first
motion for continuance. Furthermore, there is no written order denying it. Appellant
asserts that the trial court implicitly overruled the first motion for continuance by
proceeding to trial. See TEX. R. APP. P. 33.1(a)(2)(A). Appellant contends that the
trial court erred by denying the first motion for continuance because the State
“inexplicitly failed to issue a search warrant to Google to obtain Allen’s emails.”
The second motion for continuance does not appear in the clerk’s record.5
However, there is a reporter’s record from a hearing on the first morning of trial
conducted on the second motion for continuance. The record indicates that the
second motion for continuance was a written motion that the trial court “looked at.
The second motion for continuance concerned a request for more time to find
a second cell phone owned by Allen. The prosecutor acknowledged at the hearing
that a report by Texas Ranger Jason Shea mentioned a black Samsung cell phone
recovered from Allen’s home. However, the phone could not be located by
investigators by the time of trial. The prosecutor stated that this missing cell phone
was not working based on a conversation with Allen’s fiancée. The Walters asserted
that the phone was necessary to provide information about Allen’s sexual liaisons
with third parties, much like the information sought by way of the first motion for
continuance. They asserted that this information was not available on any of the
other devices used by Allen. The trial court orally denied the second motion for
continuance and proceeded to trial. Appellant asserts on appeal that the denial of
5
Appellant asserts in her brief that the trial court clerk’s office was unable to find a copy of the
second motion for continuance in the clerk’s file.
33
the second motion for continuance prevented her from presenting a complete defense
at trial.
We review a trial court’s ruling on a motion for continuance for an abuse of
discretion. Gallo v. State, 239 S.W.3d 757, 764 (Tex. Crim. App. 2007) (citing
Janecka v. State, 937 S.W.2d 456, 468 (Tex. Crim. App. 1996)). A defendant must
satisfy a two-prong test to show reversible error predicated on the denial of a pretrial
motion for continuance. See Gonzales v. State, 304 S.W.3d 838, 843 (Tex. Crim.
App. 2010). First, the defendant must show that “the case made for delay was so
convincing that no reasonable trial judge could conclude that scheduling and other
considerations as well as fairness to the State outweighed the defendant’s interest in
delay of the trial.” Id. (quoting George E. Dix & Robert O. Dawson, 42 Texas
Practice Series: Criminal Practice & Procedure § 28.56 (2d ed. 2001)). Second,
the defendant must show that he was actually prejudiced by the denial of his motion.
Id.
As noted by the court in Gonzales, a defendant filing a motion for continuance
based upon a need for additional trial preparation must show diligence as a
precondition to the motion. Id. (citing Wright v. State, 28 S.W.3d 526, 533 (Tex.
Crim. App. 2000)). As noted by the court, “A request for delay to permit further
investigation or other preparation for trial is based on nonstatutory and therefore
equitable grounds. It is particularly within the discretion of the trial court.” Id. at
844 n.11 (quoting Dix & Dawson, § 28.56).
Appellant’s motions for continuance are in the nature of a motion seeking
more time to conduct additional trial preparation. As such, Appellant was required
to show diligence in seeking the information that she requested. In the absence of a
reporter’s record for the first motion for continuance, we are hard-pressed to find an
abuse of discretion by the trial court in not granting the first motion, particularly
since the motion was filed only one week prior to trial.
34
With respect to the second motion for continuance, the trial court confirmed
that the missing cell phone had not been booked into evidence. Furthermore, the
trial court received information from the prosecutor about the efforts made by
investigators to find the missing phone prior to trial. It was within the trial court’s
purview to determine that a diligent effort had been made to find the phone or that
the phone might not ever be located. Accordingly, the trial court did not abuse its
discretion by overruling Appellant’s motions for continuance. We overrule
Appellant’s fourth and fifth issues.
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
August 30, 2019
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.6
Willson, J., not participating.
6
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
35