Jerwoody Moler v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-12-00071-CR
JERWOODY MOLER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 12th District Court
Walker County, Texas
Trial Court No. 25,314
MEMORANDUM OPINION
After a change of venue, a Grimes County jury found Appellant Jerwoody Moler
guilty of the murder of seventeen-year-old K’Lynn Kohr and assessed a life sentence
and a $10,000 fine. Proceeding pro se, Moler appeals.1 We will affirm as modified.
Sufficiency of the Evidence
We begin with Moler’s second issue, which asserts that the evidence is legally
1
After he was appointed counsel for this appeal, Moler filed a motion to proceed pro se. In a hearing
and after admonishing Moler, the trial court allowed him to proceed pro se and relieved appointed
counsel.
insufficient to support the conviction. The Court of Criminal Appeals has expressed
our standard of review of a sufficiency issue as follows:
In determining whether the evidence is legally sufficient to support
a conviction, a reviewing court must consider all of the evidence in the
light most favorable to the verdict and determine whether, based on that
evidence and reasonable inferences therefrom, a rational fact finder could
have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
13 (Tex. Crim. App. 2007). This “familiar standard gives full play to the
responsibility of the trier of fact fairly 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. “Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction.” Hooper, 214 S.W.3d at 13.
Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).
The Court of Criminal Appeals has also explained that our review of “all of the
evidence” includes evidence that was properly and improperly admitted. Conner v.
State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting
inferences, we must presume that the factfinder resolved the conflicts in favor of the
prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S.Ct.
at 2793. Furthermore, direct and circumstantial evidence are treated equally:
“Circumstantial evidence is as probative as direct evidence in establishing the guilt of
an actor, and circumstantial evidence alone can be sufficient to establish guilt.” Hooper,
214 S.W.3d at 13.
Under the Jackson test, we permit juries to draw multiple reasonable
inferences as long as each inference is supported by the evidence
presented at trial. However, juries are not permitted to come to
conclusions based on mere speculation or factually unsupported
inferences or presumptions.
Moler v. State Page 2
....
[C]ourts of appeals should adhere to the Jackson standard and
determine whether the necessary inferences are reasonable based upon
the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict.
Id. at 15-17. Finally, it is well established that the factfinder is entitled to judge the
credibility of witnesses and can choose to believe all, some, or none of the testimony
presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).
Crockett Pegoda testified that in the fall of 2010, he had been K’Lynn’s boyfriend
for a year and four months. They were both seniors in high school, and they planned
on getting married after their senior year. For her senior year, K’Lynn was living in a
mobile home with her cousin Becca Crowell at the Tanglewood mobile home park in
Huntsville. K’Lynn’s aunt (Becca’s mother) had arranged for them to live in the mobile
home, and K’Lynn had just moved in.
On Saturday morning, September 4, 2010, K’Lynn and Crockett were going dove
hunting, but K’Lynn did not wake up, so Crockett went hunting without her. After
hunting, Crockett picked K’Lynn up around midday and took her to his house. He
stayed at his house until about 3:00 p.m., when he left to go hunting again; she stayed
there until around 4:30 or 5:00 p.m. and told Crockett that she left to go to Walmart to
get dog food. They kept in touch by cell phone after Crockett left, and he last spoke
with K’Lynn around 8:40 or 8:45 p.m. when he called her to decline her invitation to
come over to eat dinner with her because his parents had told him to come home after
hunting. That was K’Lynn’s first night alone in the mobile home.
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After he got home, Crockett tried calling K’Lynn at least twice between 9:30 and
10:00 p.m., but she never answered. The next day (Sunday), he tried calling her all day,
but she never answered. Because K’Lynn had told Crockett that she was possibly going
to see her family in Cleveland, Texas, he did not worry. On Monday morning, Crockett
went bird hunting with his dad. Crockett was surprised that K’Lynn had not yet called
him back, which was unusual for her, and she still was not answering his calls. After
hunting, and now worried about K’Lynn, Crockett went to her mobile home. K’Lynn’s
locked car was there, the lights in the mobile home were off, and the door was locked.
He called K’Lynn’s aunt, who had a key, and the aunt and her then-boyfriend came
over around 2:30 p.m.
The aunt’s boyfriend unlocked the door, went in, and then came back out. He
told them to stay outside and told Crockett to call the police. Crockett called 9-1-1 on
his cell phone but did not know what to say or what to tell them to do, so he went
inside and then told the 9-1-1 operator what he saw: K’Lynn lying on the floor with her
throat cut and blood everywhere. He also told police that the blood looked dry and that
K’Lynn was not moving or breathing. Crockett testified that K’Lynn had on the clothes
that she had been wearing Saturday when she was at his house and that she never wore
the same clothes for more than one day. K’Lynn had a dog, but it was not in the mobile
home. Crockett was interviewed by police and testified that he had scratches on his
hands and that police had photographed his hands. He said that his hands were
scratched from walking through vines while hunting.
Huntsville police detective John French was one of the first police officers on the
Moler v. State Page 4
scene. He found a white female lying on the floor with couch cushions on top of her.
She was deceased and had numerous cuts. The kitchen floor looked like it had been
cleaned; it was smeared, as if someone had used a towel to wipe something, but the
towel or other item that had been used was not found. The oven was on the broil
setting, and there was charred meat in it.
Riley Ortiz, a former sheriff’s deputy who lived at Tanglewood, testified that
around 8:30 or 9:00 p.m. on September 4, while walking his dog at Tanglewood, he
came into contact with a man he did not know who was wearing a white shirt and
jeans. At trial, Riley identified Moler as the man he saw that evening at Tanglewood.
Riley spoke to him and said they only exchanged “pleasantries.” Riley had also seen
him at the pool area earlier in the evening. The pool was about 300 to 500 yards from
K’Lynn’s mobile home, and the wooded area between the pool and her mobile home
was easily accessible. Later that evening, Riley was asked to come over to the mobile
home of his neighbor Maria Rivas, who was there with her sister Yara Castaneda and
Castaneda’s daughter. They were concerned and described to Riley a man whom they
had seen at Tanglewood, and, to Riley, the man that they described fit Moler’s
description.
On the next day (Sunday, September 5), Riley, who knew K’Lynn and her dog,
found her dog at the playground and took it home. He then went to K’Lynn’s mobile
home with her dog and knocked, but no one answered. He put a note on the door to
K’Lynn that he had her dog, and he checked every two hours or so on Sunday and then
Monday to see if she had gotten his note. Finally, when Riley checked on Monday
Moler v. State Page 5
afternoon, he found a group of people there and learned what had happened. Riley
gave a written statement to Huntsville police at the scene; the statement detailed his
involvement with K’Lynn’s dog. Riley’s statement was admitted, and on cross-
examination, he admitted that it does not mention his seeing Moler at Tanglewood on
the Saturday before K’Lynn was found murdered. Riley then said on re-direct that,
after a conversation with Rivas, he realized that he needed to share with police the
information about his Saturday evening encounter with the person that he identified as
Moler. Riley explained that, when he wrote his statement on Monday at the scene, he
did not think that what had happened on Saturday evening was relevant to her being
found on Monday.
On cross-examination, Riley testified that he identified Moler in a photo lineup
as the person he saw at Tanglewood. On the photo lineup, which was admitted, Riley
wrote next to Moler’s photo: “not 100% sure.” Riley explained that, while he picked
Moler’s photo, “not 100% sure does not mean I wasn’t sure,” and that “a hundred
percent is without a doubt. Now, of course, there is always doubt.” On re-direct, Riley
said that it is easier to make an identification in person than from a photo and that he
was “a hundred percent” that his in-court identification of Moler was not incorrect.
Yara Castaneda, who lived in Houston, testified that she and her daughter, now
age eight, were visiting Castaneda’s sister, who lived at Tanglewood, over Labor Day
weekend in 2010. On Saturday, September 4, Castaneda and her daughter went to the
pool at Tanglewood around 6:30 or 7:00 p.m.; they were the only people there. Around
8:00 p.m., Castaneda saw Riley Ortiz, her sister’s neighbor, walking his dog around the
Moler v. State Page 6
pool area, and they said “hi” to each other. Then, “all of a sudden,” a guy who
Castaneda described as “white complected, kind of reddish hair, wearing baggy
clothes”—came around the pool. He was wearing a white shirt and blue jeans. He said
“hi, how are you doing,” and Riley and the man “kind of bumped” into each other.
She heard them say “hi,” so Castaneda thought he was from the mobile home park.
He tried to open the gate to the pool, but it had a code and he could not open it.
Castaneda asked her daughter to open the gate for the man, so her daughter got out of
the water and opened the gate for him. As the man walked through the gate, Castaneda
said he reached his hand inside his pants, grabbed something silver with his right hand,
and put it behind his back. At the same time, Castaneda’s daughter, who did not know
how to swim, ran and jumped into the water with a “terrified face” and said, “mom,
mom, mom, he had a knife, he had a knife.” Castaneda grabbed her cell phone and, so
the man would not know she had seen him, calmly called her sister to come pick them
up because there was “a guy with a knife.”
The man then came into the pool area and sat down with his hand behind his
back, staring at Castaneda and her daughter. Because she was nervous and scared, she
avoided eye contact with the man. He asked Castaneda if she was from there, and she
“kind of looked at him.” Castaneda’s sister soon arrived with her car headlights
shining straight on the man’s face, and the man said, “shit,” as if he were mad, and
turned his face away from the headlights. Castaneda’s daughter, who was still “real
terrified,” went straight from the pool to the car without picking up anything.
Castaneda grabbed her sandals and towel and walked away from the man on the pool’s
Moler v. State Page 7
other side. She and her sister later spoke to Riley Ortiz that evening.
Castaneda testified that she had been shown a photo lineup, but she could not
pick out the man at the pool. At trial, she could not identify that man as being in the
courtroom.
Arnold Ortiz testified that Moler began working for him at his wholesale
business in June of 2010. Arnold provided Moler with a cell phone and communicated
with Moler on that phone on a regular basis; Arnold did not know of anyone else who
used Moler’s phone. Over time, Moler became trustworthy and was given additional
responsibilities, including the code to the business’s security system in August. Moler
occasionally used the company vehicle, a 2002 Ford Explorer, and knew the access code
on the vehicle’s door to unlock it. The key was kept in the vehicle.
Arnold helped out Moler, including taking him to Walmart in late August to buy
some clothing and household goods, including a set of steak knives. Arnold identified
photos of himself and Moler with the four-piece set of knives at the Walmart check-out.
In the early morning hours of Monday, September 6, at around 12:45 a.m.,
Arnold was awakened by a text message from Moler’s phone that asked Arnold where
he was and whether he was still in Livingston. Arnold explained that he and his family
customarily went to church in Livingston and spent the whole day there and that Moler
was familiar with that. Arnold said that he responded by asking Moler by text where
he was at and that Moler texted he was at a Huntsville restaurant eating breakfast.
About fifteen minutes later, Arnold heard the roar of his Explorer going down the
driveway. He texted Moler to bring it back, and Moler replied by text with something
Moler v. State Page 8
to the effect of, “I can’t, my life is on the line. I will call you from a secure phone.”
Arnold never heard back from Moler, and the vehicle ended up in Iowa.
Arnold called 9-1-1 and Huntsville police came over the next day. Arnold
informed Huntsville police about the text messaging with Moler and showed them the
messages. Huntsville police wanted to take Arnold’s phone (a Blackberry) to Houston,
but his office manager downloaded the messages to Arnold’s computer. Arnold did not
know if the downloading was successful because he never looked at it, and he did not
know if the messages were ever printed.
Gary Shearer, a chief deputy with the Houston County Sheriff’s Office, testified
that in September 2010, he was a senior detective with Huntsville police and that he did
forensics on digital equipment. He was asked to examine Arnold Ortiz’s Blackberry
phone; the phone had been connected to Arnold’s computer to extract the messages,
and the messages were deleted from the phone. The computer was sent to the Attorney
General’s office to have the computer examined, but none of the messages were
recovered.
Doyle Self, Jr., an acquaintance of Moler’s, testified that on the evening of
September 5, Moler came to his house around 8:00 p.m. and they drank beer together.
Moler had a bandage on one hand. Moler told Self that he had been drunk and that he
fell and cut his hand. Sometime between midnight and 2:00 a.m., Self gave Moler a ride
to Dead Lake Road, which was about five miles down Highway 30. That was the last
time Self saw Moler. Self admitted that he had inaccurately told Texas Ranger Steve
Jeter that he had gone to bed that night around midnight and that Moler had left Self’s
Moler v. State Page 9
house at midnight.
Huntsville Police Detective Eric Scott testified that after Moler was developed as
a suspect, on September 7 he obtained and executed a search warrant for Moler’s
residence. He found a box of rubber—“like medical”—gloves that were similar to the
gloves found under K’Lynn’s body. He also saw blood on Moler’s bathroom floor and
door, and there was a sewing needle, thread, and bandages that looked like someone
had been trying to sew something up.
Scott also found two Paula Deen-brand steak knives and learned that they were
exclusive to Walmart. He then acquired the Walmart video of Arnold and Moler
buying the four-piece knife set a week before K’Lynn’s murder, and Scott bought an
identical set of the knives; that set was admitted into evidence. Only two of the four
knives were found in Moler’s residence; no knife or sharp object was ever identified as
the murder weapon.
Scott testified that he viewed a video from an MS Express store, and it showed
Moler on Sunday at 4:24 p.m. with his right hand bandaged—his “ring finger and his
pinkie finger were kind of taped together in a bandage.” Also, Scott acquired Walmart
video from about 5:00 a.m. on Monday, September 6 and said that still photos of that
video show Moler with a bandage on his right hand. When Scott went to Iowa to
transport Moler back to Texas, Moler had a bandage on his hand.
Scott further testified that he obtained video from Walmart that he said showed
Moler checking out on Saturday, September 4 at 6:26 p.m. Scott said that still photos
from that video show Moler and his right hand and that no bandage appears on his
Moler v. State Page 10
right hand. Moler is wearing a dark-colored shirt.
Scott said that Moler was developed as a suspect in K’Lynn’s murder based on
information received from Riley Ortiz and Yara Castaneda and from Moler’s stealing
Arnold Ortiz’s vehicle; Moler fit the description of the man that Riley Ortiz saw at
Tanglewood and that was seen at the Tanglewood pool with a knife on that Saturday
evening. Scott placed the time of the murder as Saturday evening after approximately
8:45 p.m., which was the last time that Crockett had spoken to K’Lynn on the phone.
Scott determined that Moler’s residence was a ten-to-fifteen minute walk (Moler did not
have his own vehicle) from Tanglewood. Scott estimated that the walking time from
the Tanglewood pool to K’Lynn’s mobile home was just “minutes or less;” “it’s not that
far.”
Dr. Joni McClain, the Dallas County deputy chief medical examiner, performed
the autopsy on K’Lynn. She testified that K’Lynn’s body had a total of seventeen sharp-
force injuries, consisting of both incised wounds and stab wounds. K’Lynn also had
contusions and abrasions on her scalp, neck, chest, and legs that were “fairly minor”
blunt-force injuries and could be indicative of a struggle.
Several of the incised and stab wounds were to the arms and the hands, and Dr.
McClain described them as “defensive wounds.” Two of the wounds—one to the neck
and throat area and one to the chest that cut the pulmonary artery—were the more
severe wounds, and the chest wound caused a great loss of blood, which, along with the
other wounds, caused K’Lynn’s death. The cause of death was “sharp force injuries.”
Dr. McClain said that the steak knife was consistent with K’Lynn’s wounds and was
Moler v. State Page 11
capable of causing death or serious bodily injury.
On cross-examination, Dr. McClain said that fingernail scrapings from K’Lynn
were collected and turned over, but she did not know if any DNA testing was done on
them.
Steven Jeter, a Texas Ranger, participated with Huntsville police in the murder
investigation and processed the crime scene with a now-retired Ranger and with
Melinda Strange, a Huntsville police evidence technician. Jeter said that there was no
sign of a forced entry, sexual assault, robbery, or burglary but that there was a “hell of a
fight.” He testified at length about the blood-spatter evidence at the scene, including:
 There had been an attempt to wipe or clean up blood on the linoleum kitchen
floor.
 There was a blood-drip trail and drip pattern that was “very likely” consistent
with a cut on someone’s hand.
 There were three drops of blood on K’Lynn’s arm that appeared to Jeter to be
post-mortem and to be from a source other than K’Lynn—“somebody was right
over the top of her.” Jeter collected swab samples of those three spots of blood
for DNA testing.
Jeter also testified about other key evidence:
 There were two “Latex” gloves under K’Lynn’s body—one under her right cheek
and one under her back. Jeter collected the two gloves for testing. One of the
gloves had a burn mark that he associated with smoking a cigarette. From
viewing the photograph of Moler’s hand, Jeter opined that Moler was an obvious
smoker because of the appearance of his fingers (dark staining of his index and
middle fingers) and because of a possible burn mark on his index finger.
 Jeter recovered two knives from Moler’s residence that were identical to the steak
knife set that the State had bought; two of Moler’s four-piece set were missing.
Jeter did not believe that one of the knives recovered from Moler’s residence was
the murder weapon.
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 The steak knives do not have a hand guard, and it would have been easy for a
person’s hand to slide up the knife; it would be “very possible” for someone
using that knife to cut themselves. There appeared to be blood in Moler’s
residence, but it was not tested to determine if it was blood.
 When Moler was apprehended in Iowa on September 11, Moler’s right hand was
bandaged. Jeter photographed the cut on Moler’s hand; it depicts a cut at the
bottom crease of Moler’s right pinkie and continuing through into his hand.
Neither glove found at the scene had a tear on them.
 Jeter also recovered “Latex or plastic” gloves that were on the counter in Moler’s
kitchen. Those gloves were consistent with the gloves that Jeter found under
K’Lynn’s body.
 After Moler was apprehended, Jeter obtained a buccal swab from him for DNA
testing.2 The lab results confirmed that the DNA on the gloves and the three
blood drops on K’Lynn belonged to Moler. Because the results were obtained in
ten days and confirmed Moler as a contributor, Jeter did not have any of the
other blood evidence tested. The fingernail scrapings from K’Lynn were not
analyzed for DNA because Moler had no obvious signs of scratches and because
Moler’s DNA was found on K’Lynn’s body and on the two gloves. Jeter thought
that was enough evidence to convict Moler beyond a reasonable doubt, and he,
along with the DA’s office, decided that they did not need further testing.
Andrew McWhorter, the DNA section supervisor of the Texas Department of
Public Safety Crime Lab in Houston, testified about the DNA results in this case, and
his report was admitted. McWhorter first testified about his credentials and then
explained what DNA is, how it is extracted from a sample and tested, and how
comparisons are made. The comparison of a known sample to an evidence sample is
expressed by stating that a person is either excluded from the evidence profile or cannot
be excluded—that is, the person is included in the evidence profile. If the person is
included, that is expressed statistically as “a probability of selecting another person who
2
A known DNA sample from Crockett was also obtained and submitted for DNA analysis and
comparison.
Moler v. State Page 13
has that profile at random in the population and it’s expressed as one in whatever.”
The statistic is based on a DPS and FBI database that has a certain number of
individuals who are representative of particular sub-populations. If the statistic for a
single-source DNA profile is over 1 in 297 trillion (a one followed by twelve zeroes, in
comparison to what McWhorter said was the world population of 6.8 billion), the
benchmark for scientific certainty is met and it can be said to a reasonable degree of
scientific certainty that the individual is a source of that profile.
In this case, McWhorter extracted DNA from Moler’s buccal swab and from a
sample of K’Lynn’s blood to use as a comparison to the evidence samples,3 which
included the two gloves found under K’Lynn and the three swabs of blood taken from
the surface of her arm. The gloves had “red staining,” plus McWhorter swabbed the
inside of the glove’s palm and fingers for DNA from tissue, which would include skin
or sweat.
For the two gloves, McWhorter said that their DNA profiles were consistent with
a mixture of K’Lynn’s and Moler’s DNA and that they could not be excluded as
contributors to those DNA profiles. For one glove, the probability of selecting an
unrelated person at random who could be a contributor to that glove’s DNA profile was
approximately 1 in 29.27 million for Caucasians, 1 in 711.2 million for Blacks, and 1 in
45.35 million for Hispanics. For the other glove, the probability was approximately 1 in
2.567 million for Caucasians, 1 in 30.45 million for Blacks, and 1 in 3.591 million for
Hispanics.
3
McWhorter also obtained a DNA profile from Crockett’s known sample.
Moler v. State Page 14
McWhorter testified that for one swab from K’Lynn’s upper left arm, its profile
was consistent with a mixture of K’Lynn’s DNA and Moler’s DNA and that Moler
could not be excluded as a contributor. The probability of selecting an unrelated person
at random who could be a contributor to that DNA profile was approximately 1 in 512.6
million for Caucasians, 1 in 7.42 billion for Blacks, and 1 in 2.705 billion for Hispanics.
The other swab from K’Lynn’s upper left arm had the same results as the first glove
mentioned above.
For the third swab from K’Lynn’s arm—this one from her left elbow—
McWhorter said that the DNA was consistent with a mixture of Moler’s DNA and
K’Lynn’s DNA but that Moler could not be excluded as the contributor of the major
component of that profile. McWhorter’s report states that K’Lynn also could not be
excluded as a contributor at six of the sixteen loci. He testified that the probability of
selecting an unrelated person at random who could be the source of the major
component of that DNA profile was approximately 1 in 119.6 sextillion for Caucasians,
1 in 7.278 septillion for Blacks, and 1 in 41.72 septillion for Hispanics. McWhorter said
that a sextillion is a 1 with 21 zeroes behind it, and it is far beyond what is needed for
scientific certainty. His report states: “To a reasonable degree of scientific certainty,
Jerwoody Moler is the source of the major component of this profile (excluding identical
twins).”4 In other words, McWhorter testified that, regarding the spot of blood on
K’Lynn’s left elbow, the chance of it being the DNA of a person other than Moler was 1
in 119.6 sextillion.
4
Jeter also testified about the DNA results in McWhorter’s report.
Moler v. State Page 15
McWhorter also did a DNA examination of the two steak knives recovered from
Moler’s residence. The partial DNA profile from the handle of the first knife was
consistent with Moler’s DNA. The mixed DNA profile from the other knife was
unknown, and Moler and K’Lynn were excluded as contributors. McWhorter also
tested a third smaller knife that was recovered from Moler’s upstairs porch, and while
K’Lynn was excluded as a contributor to the mixed DNA profile, Moler could not be
excluded. In conclusion, McWhorter said that no forensic evidence linked any of those
three knives to K’Lynn.
On cross-examination, McWhorter said that neither glove had a tear or puncture.
McWhorter also said that he did not do DNA testing on K’Lynn’s fingernail scrapings
that had been submitted but that he did perform testing on a vaginal swab and that
Crockett Pegoda was the contributor of the DNA from a sperm cell fraction to a
reasonable degree of scientific certainty.
The indictment alleged that on or about September 6, 2010, Moler intentionally or
knowingly caused K’Lynn’s death by stabbing her with a knife that, in its manner of use
or intended use, was capable of causing death or serious bodily injury. See TEX. PENAL
CODE ANN. § 19.02(b)(1) (West 2011). The jury found Moler guilty as charged in the
indictment.
Among his sufficiency complaints, Moler asserts that there is no evidence that he
intentionally or knowingly caused K’Lynn’s death because there was no evidence of
animosity or disagreement between them. Motive, however, is not an element of
murder. Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007). Also, a culpable
Moler v. State Page 16
mental state is invariably proved by circumstantial evidence. Giddens v. State, 256
S.W.3d 426, 434 (Tex. App.—Waco 2008, pet. ref’d); see Dillon v. State, 574 S.W.2d 92, 94
(Tex. Crim. App. 1978). The jury may infer intent from any facts in evidence that the
jury determines prove the existence of an intent to kill. Brown v. State, 122 S.W.3d 794,
800 (Tex. Crim. App. 2003). The issue on appeal is not one of theoretical possibility, but
whether, under the circumstantial evidence, it is reasonable to infer that the defendant
had the requisite culpable mental state. See Dillon, 574 S.W.2d at 95; see also Hooper, 214
S.W.3d at 14.
A knife is not a deadly weapon per se. Lafleur v. State, 106 S.W.3d 91, 95 (Tex.
Crim. App. 2003). An object is a deadly weapon, however, if the actor intends a use of
the object in which it would be capable of causing death or serious bodily injury.
McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000); TEX. PENAL CODE ANN. § 1.07
(a)(17)(B) (West Supp. 2013). Dr. McClain said that the steak knife was capable of
causing death or serious bodily injury, that K’Lynn’s wounds were consistent with the
steak knife, and that K’Lynn’s body had a total of seventeen sharp-force injuries that
were the cause of death.
If the weapon used is not a deadly weapon per se, the intent to kill may be
shown by the manner of its use along with the nature and extent of the wounds
inflicted on the victim. Boazman v. State, 501 S.W.2d 894, 896 (Tex. Crim. App. 1973);
Martinez v. State, 699 S.W.2d 910, 913 (Tex. App.—Amarillo 1985, no pet.) (“Although a
knife is not a deadly weapon per se, it can qualify as a deadly weapon by
demonstrating the manner of its use, its size and shape, and its capacity to produce
Moler v. State Page 17
serious bodily injury or death.”) (citing Hawkins v. State, 605 S.W.2d 586, 588 (Tex. Crim.
App. 1980)); see also Ervin v. State, 333 S.W.3d 187, 200 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d) (“Intent may also be inferred from the means used and the wounds
inflicted, and is a factual matter to be determined by the jury from all the facts and
circumstances in evidence.”) (citing Hemphill v. State, 505 S.W.2d 560, 562 (Tex. Crim.
App. 1974)). The intent to kill may be inferred from the use of a deadly weapon in a
deadly manner, and if a deadly weapon is used in a deadly manner, the inference of
intent to kill is almost conclusive. Watkins v. State, 333 S.W.3d 771, 781 (Tex. App.—
Waco 2010, pet. ref’d) (citing Adanandus v. State, 866 S.W.2d 210, 215 (Tex. Crim. App.
1993)).5
K’Lynn suffered seventeen sharp-force injuries, consisting of both incised
wounds and stab wounds. Several of the wounds were defensive wounds to K’Lynn’s
arms and hands. The two most severe wounds were a deep stab wound to the chest
that cut her pulmonary artery and a gaping and deep incised wound across her throat.
Dr. McClain also said that three of the wounds were inflicted after K’Lynn was already
dead.
Moler additionally argues that no murder weapon was found and that the
evidence is insufficient to show that a knife was used to murder K’Lynn. Dr. McClain
5
In his sufficiency challenge, Moler cites Code of Criminal Procedure article 38.17, but it is plainly
inapplicable in this murder case and, in any event, only applies to the jury charge. See TEX. CODE CRIM.
PROC. ANN. art. 38.17 (West 2005); Provost v. State, 205 S.W.3d 561, 569 (Tex. App.—Houston [14th Dist.]
2006, no pet.) (citing Whisenant v. State, No. 10-01-00305-CR, 2003 WL 1090504, at *5 (Tex. App.—Waco
Mar. 12, 2003, pet. ref’d) (not designated for publication) (stating article 38.17 applies to accomplice
testimony, testimony of a person acting covertly for a law enforcement agency who is not a licensed
peace officer, treason cases, and perjury cases)).
Moler v. State Page 18
testified that the cause of death was “sharp force injuries” and that the steak knife was
consistent with K’Lynn’s wounds and was capable of causing death or serious bodily
injury. And Moler’s insinuation that the evidence is insufficient because the State did
not find and offer into evidence the actual murder weapon is misguided; the State was
not required to put the actual murder weapon into evidence.
Moler also asserts that the State did not prove a specific date and time of death
and that there is no evidence that places him at the scene of the murder on or about
September 6, 2010. K’Lynn’s body was found on September 6, and the evidence
strongly suggests that she was murdered on the evening of September 4. With the
indictment’s allegation that the murder was committed “on or about” September 6,
2010, the State was not required to prove a specific date and time of death, nor was it
required to prove that the murder was committed on September 6, 2010. See Smith v.
State, 959 S.W.2d 1, 26 (Tex. App.—Waco 1998, pet. ref’d) (“When an indictment alleges
that the offense occurred ‘on or about’ a certain date, the State need only prove that the
accused committed the offense at some time prior to the filing of the indictment and
within the limitations period.”).
Moler primarily asserts that the evidence is insufficient to show that he was the
person who murdered K’Lynn. He argues that the DNA evidence “at most shows that
at some point and time” he and K’Lynn “had contact” and that his mere presence gives
rise to only a suspicion. Moler also questions the “eyewitness” testimony placing him
at Tanglewood and further argues that the “meager circumstantial evidence” did not
allow the jury to reasonably infer that he committed the murder. Rather, Moler argues,
Moler v. State Page 19
Crockett Pegoda, K’Lynn’s boyfriend, was the likely murderer.
The evidence, viewed in the light most favorable to the jury’s verdict, shows the
following:
 Approximately a week before K’Lynn’s murder, Arnold Ortiz, Moler’s employer,
bought a four-piece set of steak knives for Moler.
 On Saturday, September 4, 2010, at 6:26 p.m., Moler was at Walmart, and video
of him checking out showed that he did not have a bandage on his right hand.
 Moler did not have a vehicle, but his residence was a ten-to-fifteen minute walk
from the Tanglewood mobile-home park where K’Lynn lived and was
murdered.
 Riley Ortiz, who also lived at Tanglewood, saw Moler at Tanglewood around
8:30 or 9:00 p.m. on Saturday, September 4, 2010. Riley had also seen Moler
earlier in the evening at the Tanglewood pool.
 At the Tanglewood pool that evening, Yara Castaneda’s daughter let a man into
the pool area by opening the gate for him around 8:00 p.m. As he came in,
Castaneda saw the man reach in to his pants, grab a silver item with his right
hand, and place it behind his back.
 Castaneda’s daughter ran and jumped into the water with a terrified face and
told her mother that the man had a knife. The man sat at the pool area with his
hand behind his back and appeared to be mad when Castaneda’s sister arrived to
pick up her and her daughter. Castaneda was concerned and met with Riley
Ortiz, and Riley said that the man that Castaneda described fit Moler’s
description.
 K’Lynn’s mobile home was 300 to 500 yards from the pool and was just a few-
minutes’ walk.
 Crockett Pegoda, K’Lynn’s boyfriend, last spoke by phone to K’Lynn around 8:40
or 8:45 p.m. on Saturday evening, and he tried calling her at least twice between
9:30 and 10:00 p.m., but she never answered. He also could not reach her by
phone on Sunday, September 5, or Monday, September 6.
 On September 5, Riley Ortiz found K’Lynn’s dog at Tanglewood and took it to
her mobile home, but no one would answer the door that day or the next day.
Moler v. State Page 20
 On the evening of September 5, Doyle Self drank beer with Moler at Self’s
residence. Self gave Moler a ride between midnight and 2:00 a.m.
 Around 1:00 a.m. on September 6, Moler took Arnold Ortiz’s Ford Explorer.
When Arnold texted Moler to bring it back, Moler responded by text that he
could not because his life was on the line. On September 11, Moler was
apprehended in Iowa in Arnold’s vehicle.6
 When K’Lynn was found murdered on the afternoon of Monday, September 6,
she was wearing the same clothes that she was wearing on Saturday.
 Two latex-type gloves were found under K’Lynn’s body, and other gloves of the
same type were also found in Moler’s residence. There was evidence of Moler’s
DNA on the two gloves; Moler could not be excluded as a contributor. For one
glove, the probability of selecting an unrelated person at random who could be a
contributor to that glove’s DNA profile was approximately 1 in 29.27 million for
Caucasians. For the other glove, the probability was approximately 1 in 2.567
million for Caucasians.
 K’Lynn’s sharp-force injuries were consistent with the steak knives that Arnold
had bought for Moler. Only two of the four steak knives were found in Moler’s
residence; two were missing.
 The steak knives do not have a guard on the handle, and a person using the knife
could cut himself because the person’s hand could slide up from the handle to
the blade.
 Detective Scott said that a store video showed Moler with a bandaged right hand
on Sunday, September 5 around 4:30 p.m. Self said that Moler had a bandage on
one hand on the evening of September 5. Walmart video showed Moler with a
bandage on his right hand around 5:00 a.m. on September 6. When Moler was
apprehended in Iowa on September 11, Moler’s right hand was bandaged; he
had a cut at the bottom crease of his right pinkie and continuing through into his
hand.
 There was blood-drip trail and drip pattern in K’Lynn’s mobile home that was
consistent with a cut on someone’s hand, and there had been an attempt to clean
up blood on her kitchen floor.
 Three drops of blood on K’Lynn’s arm appeared to be post-mortem and from
6
A jury “may draw an inference of guilt from the circumstance of flight.” Clayton v. State, 235 S.W.3d
772, 780 (Tex. Crim. App. 2007).
Moler v. State Page 21
someone who was over K’Lynn’s body. Moler could not be excluded as a
contributor to the blood’s DNA profile.
 For one of the three blood drops on K’Lynn’s arm, Moler could not be excluded
as the contributor of the major component of that drop’s DNA profile. The
chance of it being the DNA of a person other than Moler was 1 in 119.6 sextillion.
“To a reasonable degree of scientific certainty, Jerwoody Moler is the source of
the major component of this profile (excluding identical twins).”
 Moler could not be excluded as a contributor to the other two drops. For one
drop, the probability of selecting an unrelated person at random who could be a
contributor to that DNA profile was approximately 1 in 512.6 million for
Caucasians. For the other drop, the probability of selecting an unrelated person
at random who could be a contributor to that DNA profile was approximately 1
in 29.27 million for Caucasians.
The State admittedly did not establish Moler’s motive to murder K’Lynn. The
State’s theory was that K’Lynn was stabbed to death on the evening of September 4,
after approximately 8:45 p.m. Moler, who was seen at the Tanglewood pool around
8:00 p.m. with a knife, was also seen by Riley Ortiz at Tanglewood around 8:30 or 9:00
p.m. Moler somehow gained unforced entry into K’Lynn’s mobile home and stabbed
her to death, using a steak knife that did not have a guard on the handle. While
violently stabbing K’Lynn, Moler cut himself on his right hand and bled at the crime
scene; he unsuccessfully attempted to clean up his blood while wearing latex-type
gloves, which he left under K’Lynn’s body. On the following evening, Doyle Self gave
Moler a ride to Arnold Ortiz’s residence, where Moler took Ortiz’s vehicle and fled the
State because he feared being caught because his blood was at the crime scene.
Viewing all the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could have found that Moler committed the offense of
murder beyond a reasonable doubt. We overrule issue two.
Moler v. State Page 22
Brady
In his first issue, Moler contends that the State committed a Brady violation by
withholding favorable evidence. A prosecutor has an affirmative duty to turn over
material, favorable evidence to the defense. Brady v. Maryland, 373 U.S. 83, 83 S. Ct.
1194, 10 L. Ed. 2d 215 (1963); Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).
To determine whether a prosecutor’s actions violate a defendant’s due-process rights,
we employ a three-part test. We consider whether: (1) the prosecutor failed to disclose
evidence; (2) the evidence is favorable to the accused; and (3) the evidence is material
(i.e., whether a reasonable probability exists that the result of the proceeding would
have been different if the evidence had been disclosed to the defense). Wyatt v. State, 23
S.W.3d 18, 27 (Tex. Crim. App. 2000); Little, 991 S.W.2d at 866.
Without the failure to disclose evidence, there is no Brady violation. See Harm v.
State, 183 S.W.3d 403, 406 (Tex. Crim. App. 2006). An open-file policy is generally
sufficient to satisfy Brady as well. Id. at 407. Also, Brady does not apply to evidence
known to the defense. Jones v. State, 234 S.W.3d 151, 158 (Tex. App.—San Antonio 2007,
no pet.) (citing Hayes v. State, 85 S.W.3d 809, 814-15 (Tex. Crim. App. 2002)).
Moler asserts that the State withheld DNA evidence from K’Lynn’s fingernail
scrapings and that, because K’Lynn fought with her assailant, the DNA evidence from
K’Lynn’s fingernail scrapings would identify her assailant. But the State did not fail to
disclose this evidence, and Moler’s trial counsel was fully aware of it. In the hearing on
Moler’s motion for new trial, Moler’s trial counsel testified that he had been provided
the State’s file, including the DNA results, that he employed a DNA expert, and that
Moler v. State Page 23
other than as a ground for a continuance during trial, he did not formally request DNA
testing of the fingernail scrapings.7 Moler’s trial counsel admitted that, from the State’s
file, he knew that the fingernail scrapings had not undergone DNA testing.
Accordingly, there was no failure to disclose regarding the fingernail scrapings.
Moler next argues that the State withheld blood evidence that Jeter recovered
from the crime scene and from Moler’s residence. Specifically, he asserts that the State
did not have DNA testing performed on trace hair recovered from K’Lynn’s body, the
blood trail in the mobile home, the wiped blood on K’Lynn’s kitchen floor, and the
alleged blood in Moler’s residence. But, as with the fingernail scrapings, there was no
failure to disclose. Nor was the State required to have those items tested for DNA, and
the State’s decision to not have any of these items tested is not a Brady violation. In
short, Moler’s trial counsel knew what evidence had and had not been tested and did
not request any other testing before trial. Moreover, there is no testimony that, had any
of the untested items undergone DNA testing, the results would have been favorable to
Moler.
Finally, Moler asserts that the State withheld videotape of him at Walmart on the
evening of September 4 at or about 8:30 p.m., and Moler argues that this videotape is
exculpatory because it places him “in another part of town” at the time that he was seen
at Tanglewood.
Detective Scott initially testified that he had video of Moler at Walmart on
7
Moler suggests that DNA testing of K’Lynn’s fingernail scrapings may identify her assailant because she
may have scratched her assailant, but there is no evidence that K’Lynn did scratch her assailant or that
the fingernail scrapings even contain human tissue.
Moler v. State Page 24
Saturday evening around 8:00 or 8:30 p.m.—“It was that evening, it was - - I don’t know
the exact time, it was around probably 8:30, maybe 8:15, 8:30.” In response to a question
of if there was “another set of pictures that show him there on Saturday, September 4th
at around 8:30 p.m.,” Scott said, “Yes, sir, there is a video of him at Wal-Mart that day.”
During a break, Moler’s attorneys told the trial court that the video “apparently
doesn’t exist” and then requested a continuance to try to locate it because it may be at
Walmart. Thereafter, Scott testified that he could not locate that video. Scott was then
asked about Moler’s bank records and testified that they showed him checking out of
Walmart at 6:28 p.m.
During the next break, Moler’s counsel again requested a continuance because of
the missing video of Moler at Walmart on Saturday around 6:30 p.m. and alleged that it
was potentially exculpatory because it would show what he was wearing and because it
placed him in another part of Huntsville about two hours before he was seen at
Tanglewood. The State responded that Moler’s being at Walmart two hours earlier was
not exculpatory because that left Moler plenty of time to walk to Tanglewood, and the
State reiterated that the defense had been allowed to inspect all of the evidence that
they wanted to see. The trial court denied the request for a continuance and indicated
that there was plenty of time to locate the missing video. After the conclusion of
testimony that day, the State notified the trial court that the video had been located and
a copy had been given to the defense; it was agreed that the State would try to “pull
some still photographs off of it.”
On the next day of trial, Scott was called again to testify. He again clarified that
Moler v. State Page 25
Moler was at Walmart on September 4 around 6:25. Also, he had acquired the video of
that transaction, and “still shots” that were time- and date-stamped show Moler on
September 4 at 6:26 p.m. The photos depict Moler in a dark-colored shirt. After the
State rested, Moler’s counsel unsuccessfully moved for a mistrial, asserting several
grounds, including the allegedly late revelation of Moler wearing a blue shirt at 6:30
p.m. on September 4. The State responded that Moler’s wearing a different shirt one
and a half or two hours before he was seen at Tanglewood was not exculpatory.
We agree with the State that the video is not exculpatory, largely because Scott
corrected his original testimony that he thought the video showed Moler at Walmart
around 8:00 or 8:30 p.m. on September 4. Also, even if the video was disclosed at trial,
Moler cannot show prejudice because his counsel had the opportunity to question Scott
about it after Scott had located the video and because there is no showing that the
defense would have pursued a different trial strategy if the information had been
known early.8 Khoshayand v. State, 179 S.W.3d 779, 783 (Tex. App.—Dallas 2005, no
pet.); Fox v. State, 175 S.W.3d 475, 490 (Tex. App.—Texarkana 2005, pet. ref’d); see also
Wyatt, 23 S.W.3d at 27; Little, 991 S.W.2d at 866. No Brady violation is shown with
respect to the September 4 Walmart video of Moler. We overrule issue one.
Attorney’s Fees
In his third issue, Moler asserts that the trial court erred in assessing attorney’s
fees in the amount of $26,500.73 against Moler because Moler was indigent. The State
8
In closing argument, Moler’s counsel argued that reasonable doubt existed because Moler was shown
with a dark shirt at 6:30 p.m., which contradicted the testimony that he was wearing a white shirt at
Tanglewood at 8:00 p.m.
Moler v. State Page 26
concedes that Moler was indigent and that there is no evidence that his financial status
changed; we agree. See Watkins, 333 S.W.3d at 781-82. Accordingly, we sustain issue
three.9
Having sustained issue three, we modify the trial court’s judgment by deleting
the $26,500.73 assessment of attorney’s fees. And having overruled issues one and two,
we affirm the judgment as modified.
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed as modified
Opinion delivered and filed April 24, 2014
Do Not Publish
[CRPM]
9
Moler filed several supplemental briefs that raise new issues, but because he did so without leave of
court, we will not address his new issues. See 10TH TEX. APP. (WACO) LOC. R. 12(f); Gardner v. Reindollar,
No. 10-13-00249-CV, 2014 WL1271776, at *1 (Tex. App.—Waco Mar. 27, 2014, no pet. h.) (mem. op.).
Moler v. State Page 27