Fred Earl Ingerson, III v. State ( 2018 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-11-00311-CR
___________________________
FRED EARL INGERSON, III, Appellant
V.
THE STATE OF TEXAS
On Appeal from the 355th District Court
Hood County, Texas
Trial Court No. CR11514
Before Meier, Gabriel, and Birdwell, JJ.
Memorandum Opinion on Remand by Justice Meier
MEMORANDUM OPINION ON REMAND
I. INTRODUCTION
This appeal is before this court on remand from the Texas Court of Criminal
Appeals. See Ingerson v. State, 508 S.W.3d 703 (Tex. App.—Fort Worth 2016) (“Ingerson
I”), rev’d, Ingerson v. State, 559 S.W.3d 501 (Tex. Crim. App. 2018) (“Ingerson II”). In his
initial briefing to this court, Ingerson raised four issues: (1) the evidence was legally
insufficient to support the jury’s capital murder verdict that he caused the deaths of
Robyn Richter and Shawna Ferris, (2) the trial court erred by overruling his objection
to what he deems extraneous-offense evidence, (3) the trial court erred by ruling that
the complained-of evidence’s prejudicial value did not outweigh its probative value,
and (4) the trial court erred by not allowing him to present alternative-perpetrator
evidence. This court initially sustained Ingerson’s first issue and thus did not address
his remaining issues. See Ingerson I, 508 S.W.3d at 736. The court of criminal appeals
reversed this court’s decision, holding that the evidence was sufficient to support the
jury’s verdicts. See Ingerson II, 559 S.W.3d at 509. The court of criminal appeals then
remanded this case back to this court for us to address Ingerson’s remaining three
issues. Id. at 511. Because we conclude that Ingerson failed to preserve his second
and third issues and because we conclude that the trial court did not abuse its
discretion by omitting the alternative-perpetrator evidence, we will affirm.
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II. DISCUSSION
The facts of this case are fully set out in both Ingerson I and Ingerson II, and a
replication of those facts is not necessary. Thus, this court will directly address
Ingerson’s remaining three issues.
A. The Trial Court’s Admission of a Check Written by Ingerson
In his second and third issues, Ingerson argues that the trial court erred by
admitting in evidence a check that Ingerson made out when purchasing a gun of the
same make and model as the murder weapon. The check’s memo field is filled in with
the notation “FOR DOOR.” The State, however, introduced the check and elicited
testimony that the check was in fact for a gun. Ingerson argues that this was
extraneous-offense evidence and that its prejudicial value outweighed its probative
value. The State argues that Ingerson has failed to preserve these issues for our
review. We agree with the State.
To preserve a complaint for our review, a party must have presented to the trial
court a timely request, objection, or motion stating the specific grounds, if not
apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v.
State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Generally, if a trial court hears
objections to proffered evidence outside the jury’s presence and rules the evidence
admissible, the objections are deemed to apply when the evidence is admitted before
the jury without the necessity of repeating the objections. Tex. R. Evid. 103(b); Haley
v. State, 173 S.W.3d 510, 517 (Tex. Crim. App. 2005). But when a defendant
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affirmatively asserts that he has “no objection” when the evidence is presented for the
jury, the defendant typically forfeits any error for appellate review. James v. State, 772
S.W.2d 84, 97 (Tex. Crim. App.), vacated on other grounds, 493 U.S. 885 (1989).
Moreover, if a witness testifies to the contents of a properly objected-to document
without objection, then the defendant fails to preserve the issue of the document’s
admission for appellate review. See Clay v. State, 361 S.W.3d 762, 767 (Tex. App.—
Fort Worth 2012, no pet.) (“[B]ecause Wallace provided testimony about the
Louisiana records without objection before and after appellant’s objection to the
admission of the records and because appellant failed to obtain a running objection,
we conclude that he forfeited his objection to the records’ admission.” (footnote
omitted)).
Here, outside the presence of the jury, Ingerson objected to the admission of
the check. But later, in the presence of the jury when the State introduced a
photocopy of the check, Ingerson stated that he had “[n]o objection.” Furthermore,
the State elicited testimony from the person to whom Ingerson had written the check,
and he testified, among other contents, that the memo field on the check stated it was
for a “door.” Ingerson did not object to this testimony. Because Ingerson
affirmatively stated he had no objection when the State introduced the check and
because he did not object when the State later introduced testimony regarding the
contents of the check, Ingerson has failed to preserve his second and third issues for
our review, and we overrule them.
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B. Alternative-Perpetrator Evidence
In his fourth issue, Ingerson complains that the trial court erred by not
allowing him to present evidence of an alternative perpetrator. At trial, Ingerson
sought to introduce evidence that Mohamed Sylla had a motive to murder Richter.
Specifically, Ingerson sought to introduce evidence that Sylla and Richter were
involved in a scheme to defraud the county tax authority by having Sylla’s friends pay
cash to Richter (who worked at the motor vehicle registration section of the tax office
prior to her murder) for motor vehicle registrations, then Richter allegedly void these
transactions through gift-transfer affidavits, and then take the cash. According to
Ingerson, Sylla had motive to kill Richter because she was being investigated for these
transactions and he feared being implicated in the scheme. The State counters that
Ingerson failed to demonstrate a nexus between Sylla and any of the alleged
suspicious transactions and that thus the trial court did not abuse its discretion by not
admitting the evidence.
A defendant can attempt to prove his innocence by showing that someone else
committed the crime. Wiley v. State, 74 S.W.3d 399, 406 (Tex. Crim. App.), cert. denied,
537 U.S. 949 (2002). But to present evidence of an alternative perpetrator, the
defendant must show that the evidence is sufficient to establish a nexus between the
crime charged and the alleged alternative perpetrator, either on its own or in
combination with the other evidence in the record. Id. The admission of alternative-
perpetrator evidence is also subject to a rule 403 balancing test, according to which
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the trial court must weigh its probative value against its tendency to confuse the issues
or mislead the jury, among other potential harms. Tex. R. Evid. 403; Wiley, 74 S.W.3d
at 405–06. Because alternative-perpetrator evidence presents “a great threat of
‘confusion of the issues,’” it must be viewed with caution. Wiley, 74 S.W.3d at 407.
We review a trial court’s exclusion of alternative-perpetrator evidence for an abuse of
discretion. Martin v. State, 173 S.W.3d 463, 467 (Tex. Crim. App. 2005); Caldwell v.
State, 356 S.W.3d 42, 48 (Tex. App.—Texarkana 2011, no pet.). A trial court does not
abuse its discretion by excluding alternative-perpetrator evidence if its ruling was
within the “zone of reasonable disagreement.” Martin v. State, 173 S.W.3d at 467.
In this case, while Ingerson produced some evidence through witness
testimony at trial suggesting that Richter had falsified affidavits and pocketed cash,
Ingerson did not present any evidence that Sylla had any relationship to these
suspicious transactions. Indeed, all of the witnesses questioned during Ingerson’s
offer of proof testified that they had no knowledge that Sylla benefited from or was
involved in any of these alleged suspicious transactions. In fact, multiple witnesses
testified that after Richter’s murder, any investigation into the suspicious transactions
ceased. Moreover, Ingerson did not present any of the allegedly suspicious affidavits.
And other than eliciting testimony that Sylla knew Richter, would often seek her out
at the tax office when he would register motor vehicles, and would refer his friends to
her, Ingerson presented no evidence that Sylla may have been involved in a tax-fraud
scheme with Richter nor that he had the motive to murder her because she was being
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investigated. Most importantly, Ingerson presented no evidence demonstrating a
nexus between Sylla being involved in the alleged tax scheme and Richter’s murder.
See Wiley, 74 S.W.3d at 406 (holding that to be entitled to present alternative-
perpetrator evidence, defendant must demonstrate a nexus between his proffered
evidence and the charged offense).
But even if we assumed that Ingerson’s proffered evidence had some marginal
relevance, the proffered evidence cannot survive the balancing test under rule 403.
Tex. R. Evid. 403. The probative value of this evidence was slight because of its
highly speculative nature. The evidence did, however, present a great threat of
confusion of the issues because it would have forced the State to attempt to disprove
the nebulous allegation that perhaps Sylla was somehow involved in some alleged tax
scheme. This side trial might have led the jury astray, turning the focus away from
whether Ingerson—the only person whose actions were on trial—murdered Richter
and Ferris. Ingerson’s proffered evidence is precisely the type of emotionally-
freighted but speculative evidence that trial judges properly exclude under rule 403,
whether offered by the State or the defendant. See Wiley, 74 S.W.3d at 407 (“It is not
sufficient for a defendant merely to offer up unsupported speculation that another
person may have done the crime.”) (quoting United States v. McVeigh, 153 F.3d 1166,
1191 (10th Cir. 1998), cert. denied, 526 U.S. 1007 (1999)).
Because Ingerson did not show a nexus between his proffered evidence of an
alternative perpetrator and the crime charged and because the proffered evidence’s
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prejudicial value substantially outweighed its probative value, we hold that the trial
court did not abuse its discretion by excluding Ingerson’s proffered alternative-
perpetrator evidence. Tex. R. Evid. 403; Wiley, 74 S.W.3d at 405–06. We overrule
Ingerson’s fourth issue.
III. CONCLUSION
The court of criminal appeals having rejected this court’s ruling on Ingerson’s
first issue that the evidence was insufficient to support the jury’s capital murder
verdict that he caused the deaths of Robyn Richter and Shawna Ferris and having
remanded the case to this court, and this court having overruled on remand
Ingerson’s three remaining issues, we affirm the trial court’s judgment.
/s/ Bill Meier
Bill Meier
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: December 31, 2018
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