Edward George McGregor v. State , 394 S.W.3d 90 ( 2012 )

Opinion issued August 9, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-10-01085-CR
———————————
EDWARD GEORGE MCGREGOR, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 434th District Court
Fort Bend County, Texas
Trial Court Case No. 09-DCR-053051
OPINION
In this cold-case murder prosecution, a jury convicted appellant, Edward
George McGregor, of capital murder, and, because the State did not seek the death
penalty, the trial court automatically assessed punishment at confinement for life.1
In nine issues, appellant contends that (1) and (2) the trial court erroneously
admitted evidence of an extraneous murder offense in violation of Texas Rules of
Evidence 404(b) and 403; (3) and (4) the trial court erroneously admitted evidence
of an extraneous terroristic threat that referenced both the charged offense and the
extraneous murder in violation of Rules 404(b) and 403; (5) the trial court
erroneously denied his motion to dismiss the indictment for lack of a speedy trial;
(6) the trial court erroneously denied his requested jury instruction on third-party
culpability; (7) the State failed to present sufficient evidence that he killed the
complainant during the course of committing either aggravated sexual assault or
burglary; (8) the trial court erroneously admitted physical evidence and DNA test
results derived from that evidence because the State failed to establish the chain of
custody; and (9) the trial court erroneously denied his motion for mistrial made
when a juror indicated during deliberations that she was feeling coerced by the
other jurors to change her opinion.
We affirm.
1
See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 2011).
2
Background
A. The Charged Offense
Former Missouri City Police Department (“MCPD”) Officer L. Weathers
was dispatched to a house on Whispering Pines in the Hunters Glen subdivision of
Missouri City around 11:45 p.m. on April 17, 1990. When Officer Weathers
arrived at the house, he noticed that the front door was open, and he saw a white
object lying on the walkway to the front door. As he approached the house, he
discovered that this object was a blood-stained pillow, and he also saw blood on
the walkway and the nearby grass. When he entered the house, he did not see any
signs of a struggle in the living room, but he did see blood stains on the front door.
Officer Weathers heard a moan, and he discovered the complainant, Kim
Wildman, a Caucasian woman in her late thirties, lying on the kitchen floor with
the telephone next to her. She was very pale and was moving slightly in pain.
Officer Weathers testified that “[t]here was quite a bit of blood in the kitchen,”
and, because Wildman was not wearing any clothing, he could see numerous stab
wounds on her arm, one stab wound near her rib cage, one stab wound near her
hip, and deep defensive wounds on her hand.
Wildman was still conscious at the time, and Officer Weathers asked who
had attacked her. She stated that “a black man” had attacked her, and she indicated
3
that she did not know her attacker.2 Officer Weathers tried to obtain a physical
description, but Wildman started drifting in and out of consciousness. He testified
that she was not in a physical or mental state where she could give him “a lot of
information about what happened.” Wildman died later that evening.
After backup arrived, Officer Weathers and another officer went upstairs
where they discovered a “very brutal scene.” Officer Weathers testified that there
was blood all over the bed and floor of the bedroom and that the bed had broken at
the headboard. He believed that “[t]here had been a heck of a struggle on the bed
and in that room.” Officer Weathers did not see any weapons in the bedroom, but
he testified that there was a chain connected to the headboard of the bed, and this
chain had blood on it, as well as a clump of hair consistent with Wildman’s. He
believed that she had been restrained with the chain at some point.
Officer Weathers further testified that, although he did not see any signs of
forced entry by the front door, he saw a dining-room window that had “two holes
punched by the lock” and broken glass. He stated that this method of entry is “a
fairly common way for burglars to get into houses without shattering the whole
window.”
2
The trial court admitted the tape of Wildman’s 9-1-1 call, during which she stated
to the dispatcher that she did not know her attacker. Wildman did not mention a
sexual assault during the 9-1-1 call.
4
On cross-examination, Officer Weathers agreed that Wildman told him that
“a black man” attacked her, and she did not further qualify this statement by saying
that her attacker was a “young” black man. He did not recall whether he saw any
torn clothes in either the bedroom or the kitchen that may “have been ripped off of
her as she struggled.” He also agreed that the holes in the dining-room window
could have been made by the tip of a screwdriver.
Former MCPD Detective R. Echols testified that he arrived at the scene
around 12:30 a.m. and that Life-Flight had already taken Wildman to the hospital
by this point. He agreed with Officer Weathers that there was a “considerable”
amount of blood in Wildman’s bedroom, with the majority of the blood located on
the mattress and some blood spatters located on the head and footboards of the bed.
Because papers were “strewn about” the floor, a table was overturned, and the
headboard was broken, Detective Echols believed that a struggle had occurred in
the bedroom and that this location was where Wildman was initially attacked. He
agreed that making small holes near the locking mechanism of a window was a
“fairly common” method of gaining entry into a house. He testified that the
dining-room window screen “looked to be intact,” but it “was not properly
affixed.” He stated that there was no indication that theft was the motive for
breaking into Wildman’s house.
5
Detective Echols testified that, during the investigation, officers inquired at
nightclubs that Wildman was known to frequent, but they did not receive any
useful information. He also stated that the officers discovered that Wildman had
an interest in topless dancing, but they did not locate any clubs at which she
worked as a dancer at the time of her murder.
Detective Echols also testified that, several nights after Wildman’s murder,
MCPD officers arrested a young man named Corey Henry for attempted burglary
in the same neighborhood. Henry was carrying one blade of a pair of scissors and
a screwdriver when he was arrested. Detective Echols stated that he later learned
that Henry was arrested in Harris County several months after the burglary arrest
and charged with aggravated sexual assault. Henry remained the prime suspect in
the Wildman murder for several years, but, eventually, he was eliminated as a
suspect through DNA testing.
Dr. Aurelio Espinola, who formerly worked as a medical examiner for the
Harris County Medical Examiner’s office, conducted Wildman’s autopsy. Dr.
Espinola testified that Wildman had stab wounds on the left side of her chest and
her hip, two stab wounds on her left arm, four stab wounds on her back, and
defensive wounds on her left hand. Dr. Espinola opined, based on the nature of her
injuries, that Wildman resisted her attacker and was moving around while being
attacked. He also testified that he believed Wildman’s wounds were caused by a
6
knife that had a blade with two sharp edges as opposed to one sharp edge and one
blunt edge. When shown the one-bladed scissor that the MCPD officers recovered
from Corey Henry, he testified that it was “very unlikely” that this type of weapon
caused Wildman’s injuries because part of the scissor was thick and blunt, and,
thus, this weapon would have created a stab wound with one sharp edge and one
blunt edge.
Dr. Espinola also testified that Wildman had a small laceration on the
opening of her vagina. He stated that this was not the type of injury that he would
expect to result from sexual intercourse. He further testified that, “in forceful
sexual intercourse, there will be abrasion[s] and contusion[s],” and Wildman did
not have such injuries. Dr. Espinola also collected oral, vaginal, and rectal swabs
during the autopsy. He testified that the vaginal swab revealed spermatozoa with
complete heads and tails, which indicated that Wildman had recently had
intercourse prior to her death, and the rectal swab revealed spermatozoa with only
the heads present.
On cross-examination, Dr. Espinola testified that there was no evidence that
Wildman had been strangled by her attacker. He agreed that the vaginal laceration
was “pretty small,” that he could not tell when that injury occurred, and that he
observed no physical trauma indicative of forcible, nonconsensual intercourse
close to the time of death. He also agreed that spermatozoa could reside in the
7
vagina for over a day and that he could not say that the sperm he discovered in
Wildman’s vagina was placed there contemporaneous with her murder.
Houston Police Department (“HPD”) Investigator R. Swainson testified that,
during the course of investigating a Harris County case in 2005–2006, he met
appellant, who voluntarily provided a DNA sample via a buccal swab. Investigator
Swainson interviewed appellant at both his apartment and HPD headquarters
concerning the Harris County case and released him after the interview.
Investigator Swainson testified that at the time he interviewed appellant and
obtained appellant’s DNA sample he did not know anything about the Wildman
murder. Investigator Swainson subsequently learned about the Wildman murder
and the fact that appellant’s family had lived two doors down from Wildman in
1990 from his partner, Officer J. Binford, and he then shared the results of
appellant’s buccal swab with the MCPD.
Robin Guidry, a criminal specialist for the HPD Crime Lab, testified that, in
2006, she was an analyst for IdentiGene, a private DNA laboratory that had a
contract with HPD to perform DNA testing and analysis services. Guidry stated
she developed a DNA profile of appellant from the buccal swab collected by
Investigator Swainson.
On cross-examination, Guidry agreed that the presence of DNA in, for
example, a murder victim’s vagina, by itself, cannot provide information
8
concerning whether the sexual intercourse was consensual or nonconsensual, when
the sexual act occurred, or whether the sexual act was connected to the homicide.
Former MCPD Officer A. Wiltse testified that she took over the Wildman
investigation in 1996 or 1997, and, a few years after that, she entered the DNA
profile recovered from Wildman’s autopsy into the CODIS database system with
the hope that, at some point, a known DNA sample would match. Several years
after this, she had a conversation with HPD Officer Binford concerning appellant.3
During this conversation, Officer Binford mentioned appellant’s parents’ address
on Whispering Pines. Officer Wiltse then attempted to obtain a comparison of
appellant’s known DNA profile with the DNA recovered from Wildman’s autopsy.
Kristi Wimsatt, a forensic scientist at the Department of Public Safety Crime
Lab, testified that her lab received the swabs taken during Wildman’s autopsy for
testing. Wimsatt stated that she developed a DNA profile during April 2001, when
her lab was processing DNA samples from cold cases to upload into a database.
Several years later, Wimsatt received appellant’s DNA profile that Guidry had
completed, and she compared appellant’s known DNA profile to the profile that
she herself had created from the samples taken during Wildman’s autopsy. She
3
Officer Binford testified that he and his partner, Investigator Swainson,
interviewed appellant concerning an unrelated offense in February 2006, and he
obtained a buccal swab from appellant. After the interview, Officer Binford
learned that appellant was planning to move back to Missouri City. He contacted
the MCPD and informed Officer Wiltse that appellant planned to move back to his
mother’s house on Whispering Pines.
9
concluded that the DNA profile that she obtained from Wildman’s vaginal swab
was consistent with appellant’s DNA profile developed from the buccal swab.
Delores Lee Gable, who has multiple felony convictions and is currently
incarcerated at the Hobby Unit in Marlin, Texas,4 testified that, in April 1990, she
and her husband, Brian Gable, who is now deceased, rented a house located close
to Wildman’s. Gable testified that while she was incarcerated in the Hobby Unit
she saw a news report concerning appellant’s prosecution and wrote a letter to the
Fort Bend County assistant district attorney then assigned to this case telling him
that she had relevant information about Wildman’s murder.
Gable testified that on April 17, 1990, she and her family returned from
dinner around 8:00 p.m. When they arrived, “quite a few” of the neighbors were
outside and police officers were at Wildman’s house. Gable was taking her
children inside the house from the car when she saw appellant, who was seventeen
years old at the time of Wildman’s murder, speaking with her husband near the end
of their driveway. She heard appellant tell her husband that “he had got into it with
the lady, and they got into a scuffle, and he didn’t mean to, but he had killed her.”
She stated that appellant pointed toward Wildman’s house. Her husband asked
4
Gable testified that she is currently serving a ninety-year sentence for solicitation
of capital murder and a seventy-five-year sentence for drug trafficking and has
been incarcerated since 1995. She also testified that she first heard from the
parole board in January 2010, eight months before the trial in this case. She stated
that she has not been promised anything by the State for her testimony in this case
and that she is concerned for the safety of herself and her family.
10
appellant who he was talking about, and appellant responded, “[T]he white lady.”
Gable also testified that she noticed a “fresh” cut on appellant’s face and that she
had never seen that cut before. She testified that she would be surprised to learn
about a sexual relationship between appellant and Wildman because Wildman
“was a sophisticated type of lady” and Gable could not imagine “her with
[appellant], being young.”
Appellant’s younger brother, Tesfa McGregor, testified on appellant’s
behalf. He stated that his mother and his siblings moved to Whispering Pines in
1989. He testified that he saw Wildman out in her yard on “more than a few
occasions,” that she was “showy in the kind of clothing that she wore,” and that
Wildman and appellant exchanged pleasantries when they saw each other. On the
day of Wildman’s murder, Tesfa and appellant were playing in their backyard until
around 6:00 p.m., when their mother called them inside for dinner. After eating,
Tesfa went upstairs to his bedroom and stayed up there until around 9:00 p.m. He
then went downstairs, saw appellant in his bedroom, and joined him in playing
video games. He could not account for appellant’s whereabouts in between 6:30
p.m. and 9:00 p.m. Tesfa stayed with appellant for about an hour before going
back upstairs. He “dozed off” around 11:00 p.m. and woke up shortly thereafter
when he heard “some loud talking” coming from the backyard. He did not hear
anyone leave the house from the time he went back upstairs after playing video
11
games with appellant to the time he was awoken by the loud voices, which were
police officers in the McGregors’ backyard. When Tesfa saw appellant after 11:00
p.m., he was wearing the same clothes that he had been wearing when they had
played video games earlier and he did not have any cuts, bruises, or blood on him.
He stated that, after the police arrived at Wildman’s house, he never saw appellant
walk over to another house nearby and talk with the neighbors.
Appellant’s mother, Sonia McGregor, also testified on appellant’s behalf.
She stated that on the night of Wildman’s murder, she called her children in for
dinner around 6:00 p.m., and she went upstairs while they stayed downstairs to eat.
Sonia took a nap until around 9:00 p.m. that evening and then went downstairs to
do laundry. She could hear appellant and Tesfa playing video games in appellant’s
bedroom. Sonia was downstairs for the rest of the evening, and she did not hear or
see anyone leave her house. Later, she heard appellant yell that someone was
walking in their backyard, and she looked out through the garage and could see
flashing lights. The family all ran outside to see what was happening. She
testified that, while she was standing outside, appellant did not walk over to any of
the other houses on the street. She stated that she had never seen Delores Gable
before, and she did not know Gable or her husband.
Appellant testified on his own behalf. One day, appellant was walking back
to his house from the store and stopped to talk to Wildman, who was in her front
12
yard. They “flirted a little bit,” and Wildman invited him inside her house where
they continued to talk and “kiss a little bit.” Wildman told him that they needed to
“think about this” and they needed to be discreet. Later, “a couple of weeks
before” Wildman died, appellant went by her house again and, this time, they had
sex.
On the night of Wildman’s murder, appellant testified that he played with
Tesfa in their backyard until their mother called them inside for dinner around 6:00
p.m. After Tesfa went upstairs, appellant went over to Wildman’s house around
6:30. Appellant and Wildman then had sex in her bedroom upstairs. He testified
that he did not tie her up with a chain. He could not say how long he was there,
but afterwards, Wildman told him that he needed to go because someone was
coming by her house. When he left, Wildman was still alive and had no injuries.
He did not know what time he arrived back home, but he recalled that it was still
daylight when he left Wildman’s.
At home, appellant took a shower around 8:30 and then played video games
in his bedroom. All of his family members were upstairs at the time. At some
point in the evening, Tesfa joined him and both of them heard their mother come
downstairs and start to do laundry. After Tesfa went back upstairs, appellant
stayed in his bedroom, with the door open, and he did not leave the house until he
heard voices in the backyard. His mother spoke with the police officers, and then
13
the family stood in front of their house and watched the officers and the Life-Flight
helicopter. He testified that no one came over to their house and spoke with them,
and he did not leave to go to another house. He stated that he had never seen
Delores Gable before, and he did not know her husband. Appellant also testified
that, several days later, he had a conversation with his friend Jacques Washington,
and appellant told him that he had had a “sexual encounter” with Wildman.
B. The Extraneous Offense
After several pre-trial hearings and hearings outside the presence of the jury,
the trial court ultimately ruled that the 1994 murder of Edwina “Nina” Barnum, an
African-American woman in her early twenties, in Harris County was admissible
as an extraneous offense to prove identity and consent in the Wildman murder.
The trial court instructed the jury that testimony concerning the Barnum murder
was for “the limited purpose of establishing consent or identity” in the Wildman
case and that the jury should only consider the testimony if it believed beyond a
reasonable doubt that appellant had committed the extraneous offense mentioned.
HPD Officer H. Ruiz was dispatched to an apartment complex in southeast
Houston around sunrise on May 25, 1994. When Officer Ruiz arrived, she saw
that the front door to Barnum’s apartment had been kicked in. Inside the
apartment, she saw a body lying fully-clothed on the floor next to one of the beds
in the only bedroom. Officer Ruiz testified that Barnum’s hands were bound
14
behind her back with a bootlace, a belt was secured around her neck, and a pillow
with a gunshot through it was lying over her head. The bed-sheet was wrapped
around one of Barnum’s legs “as if she had been pushed off of the bed.” Officer
Ruiz also observed a bloody knife wrapped in a place mat next to Barnum’s body.
Officer Ruiz stated that the apartment was “a big mess,” with the bedroom being
particularly untidy. She observed Crime Scene Unit Officer Cates, who took
photographs and processed the scene for evidence, fold up the four corners of the
bed-sheet to secure any relevant evidence from the bed. Cates was deceased at the
time of appellant’s trial.
Former HPD Homicide Division Officer S. Null was assigned to the Barnum
murder. When he arrived at the scene after the initial officers responded, the front
door to Barnum’s apartment was locked, but the center panel of the door had been
kicked in. He stated that the apartment “wasn’t very well taken care of, kind of
messy” and that the contents of Barnum’s purse had been dumped onto the kitchen
table. Barnum was lying fully-clothed on the bedroom floor and “the sheets to the
bed were partially pulled off of the bed onto the floor with [Barnum’s] leg.”
Barnum had a gunshot wound to the back of her head, a stab wound and stun gun
wounds on her back, and several shallow cuts on her neck through a belt fastened
around her neck. Barnum’s arms were bound behind her back. The medical
examiner later informed Officer Null that he did not believe that Barnum had been
15
sexually assaulted because he found no damage or trauma to her vaginal or rectal
areas. The medical examiner performed a sexual assault examination and no
semen or other bodily fluids were recovered. Officer Null acknowledged, on
cross-examination, that he “could find no motive for a sexual assault in this
killing.” During his investigation at the scene, Officer Null learned that Barnum
was a topless dancer at a club called Foxy’s Cabaret and that she also worked as a
prostitute.
Officer Null, documented the evidence present at the scene while his partner,
Sergeant R. Doyle, spoke to potential witnesses. Officer Null testified that he
observed Officer Cates gather all of the bedding and put it in a container. Later
that day, Officer Cates paged Officer Null and requested that he stop by the crime
scene unit office. When Officer Null arrived at the office, Officer Cates had the
bed sheets from Barnum’s apartment spread out, and Cates showed Null a plastic
evidence bag containing a condom, which Cates said he recovered from the
sheets.5 Officer Null identified an HPD evidence bag, which contained a plastic
bag with a condom inside, that had the correct case number and offense date
pertaining to Barnum’s murder and Officer Cates’s name and badge number. He
5
Appellant had previously objected to any testimony concerning the condom on the
ground that Officer Cates was deceased, and, therefore, any testimony concerning
Cates’s statements regarding the condom denied him his right to confrontation.
Appellant also objected to admission of the condom and to any discussion of DNA
results from the condom on the basis that, because Officer Cates was unavailable,
the State did not sufficiently establish the first link in the chain of custody.
16
also testified regarding the procedures used by HPD officers for submitting items
of evidence to the property room for storage and lab testing.
Officer Null testified that Monique Johnson, a very good friend of
Barnum’s, had a physically abusive husband, and Johnson would sometimes stay
with Barnum at her apartment. He stated that Johnson’s husband, Shun Minor,
“would go around and threaten friends and family trying to find out where
[Johnson] was.” Due to his violent behavior and tendency to threaten those with
whom Johnson would seek refuge, Minor became a suspect in Barnum’s murder.
Minor also owned a .380 caliber handgun, which matched the caliber of the shell
casing found at the murder scene.6 Although Null testified that Minor was his
“best suspect,” he never arrested Minor because he “didn’t have enough [evidence]
to arrest him on [Barnum’s] murder.”
Jennifer Otto, who formerly worked at IdentiGene as a forensic DNA
analyst, testified that she performed a DNA analysis on the condom recovered
from Barnum’s sheets. Otto testified that she compared the DNA profile from the
condom to appellant’s known DNA profile generated from his buccal swab, and
she stated, “[Appellant] cannot be excluded as being a donor to the condom. And
the frequency of that DNA profile found on the condom from an unrelated
individual at random in the population is less than one in 76 quadrillion people.”
6
Ballistics testing later revealed that Minor’s handgun was not used in Barnum’s
murder.
17
Otto also stated that she “[could not] testify” if semen was present on the condom.
Otto acknowledged on cross-examination that she could not tell from her analyses
the age of the cells present on the condom, and, thus, she could not determine how
long the condom had been present in Barnum’s sheets.
Adam Osani, who was in custody in the Harris County Jail from September
2007 through February 2008, testified concerning statements appellant made while
in jail awaiting trial for the Barnum murder. Osani testified that while they were in
custody together, he did not have a friendly relationship with appellant, who was
considerably larger and who bullied him. Osani witnessed an incident between
appellant and another inmate named Marvin Paxton, who was in the neighboring
cell, late one night. According to Osani, appellant had been bullying him, and
Paxton told appellant to leave Osani alone. In response, appellant became angry,
walked over to the bars in between their cells, reached through the bars towards
Paxton, and told him, “Bitch, I’ll kill you like I did those other two bitches.”
Osani also testified that, later, he and another inmate were discussing how
Osani had once visited the Harris County Medical Examiner’s office with a friend
who worked there. Appellant overheard this conversation and “started being really
nice to [Osani].” Appellant asked Osani if he really had a friend who worked in
the medical examiner’s office, and, when Osani responded that he did, appellant
asked, “Let’s just say, hypothetically, if somebody needed to collect DNA
18
evidence, would your friend be able to do that?” Appellant indicated that Osani
“would be paid really handsomely,” and he mentioned Fort Bend County and
asked if Osani’s friend had “jurisdiction” to collect DNA evidence from a body.
Marvin Paxton, who had two pending aggravated robbery cases at the time
of appellant’s trial, testified that he has been in custody in the Harris County Jail
since April 2007. He acknowledged that he was subsequently diagnosed with
paranoid schizophrenia and bipolar disorder and that he takes medication for both
of these disorders. Paxton testified that, in December 2007, appellant, who
routinely bullied Osani, again teased Osani, and Paxton intervened on Osani’s
behalf. According to Paxton, appellant lost his temper, jumped up, grabbed at
Paxton through the bars, and told him to “shut [his] f——– mouth before I kill you
like I did those two bitches.”
At a later date, appellant and Paxton had another conversation and appellant
apologized for the earlier incident. During this conversation, Paxton asked
appellant if he was “for real” or if he was “just trying to scare” Paxton. Appellant
responded, “Oh, yeah, I did it.” Paxton testified that appellant said that “he killed
those two females, he lost his cool and he killed them. . . . He went to jail, he
bonded out, and it was like [a] $250,000 bond.” Appellant did not provide any
details regarding the victim’s names or where the offenses occurred. When asked
by the State where appellant had made bond, Paxton testified that he could not
19
remember, but that it was either Fort Bend or Montgomery County. Paxton also
testified that when appellant said “and I killed them,” he made a strangulation
gesture. Appellant did not say that he strangled anyone, but that was how Paxton
interpreted the gesture. Regarding the second murder, Paxton testified that
appellant said “he lost control again and he did it again.” Appellant also indicated
that he had had sex with both women, but he did not indicate when sex happened
relative to the murders. Paxton believed that appellant was telling the truth about
his involvement in those two offenses.
Appellant testified that he first met Barnum at a party around 1990 and that
he would flirt with Barnum, although she did not reciprocate his interest. In late
February 1994, appellant’s girlfriend and Barnum both worked at the same topless
club, and, on one occasion, appellant gave Barnum a ride home. Several weeks
later, in late March 1994, appellant went to the club to pick up his girlfriend, with
whom he had been having relationship troubles, and he again encountered Barnum
and gave her a ride home. At Barnum’s apartment, the two of them smoked
marijuana and ended up having sex. Appellant testified that he used a condom,
although he did not remember what happened to it afterwards. He stated that
Barnum’s apartment was “a mess.” On cross-examination, appellant testified that
he only had sex with Barnum on this one occasion, two months before Barnum was
murdered.
20
After he was arrested for the Wildman murder, appellant told officers that he
did not know “Kimberly Wildman,” but, at his bond reduction hearing several days
later, he admitted that he had had a sexual encounter with Wildman. While out on
bond, he was arrested for the Barnum murder on December 1, 2006. In his initial
interview, he did not tell the investigating officers that he had known Barnum
because “[he] didn’t know who Edwina Barnum was.”
Appellant testified that while he was in the Harris County Jail, he stayed
away from Paxton because he “was sort of crazy.” He testified that he never
threatened Paxton and he never had a conversation with Paxton about killing two
women while out on bond. He further testified that he never had a conversation
with Osani concerning removing evidence from the medical examiner’s office.
C. Procedural Background
Appellant was arrested for the Wildman murder on May 2, 2006. Shortly
after his arrest, he posted a $250,000 bond. He was not indicted for this offense
until October 26, 2009. During the interim time period, appellant was arrested for
the Barnum murder on December 1, 2006, and he remained incarcerated in the
Harris County Jail for this offense until his trial in this case.
On January 25, 2010, defense counsel moved to dismiss the indictment in
the Wildman case due to a denial of appellant’s constitutional right to a speedy
trial. Over three years and five months elapsed between the date of appellant’s
21
arrest and the date of his indictment in the Wildman case, and he contended that he
“ha[d] not committed any act or omission contributing to this delay.” Defense
counsel argued,
For over 3 years, the State refused to seek indictment and discussed
weakness[es] and problems in the death penalty capital case in Harris
County [the Barnum case]. Harris County Prosecutors met with Fort
Bend County Prosecutors to see [the] possibility of Fort Bend
pursuing [the] non-death capital case against Defendant. The State in
Harris County also was never ready for trial. Defendant requests that
this cause be dismissed. Each time the case has been delayed, it has
been delayed through the actions and inactions of the prosecuting
attorney and the courts.
He argued that the delay was prejudicial because appellant had suffered
“oppressive pre-trial incarceration, as well as much anxiety and concern regarding
the outcome to the trial herein.” He also argued that he “has suffered in his ability
to present his case in that it is difficult to locate witnesses or for witnesses to
accurately remember facts.”
On March 5, 2010, the trial court held a hearing concerning appellant’s
speedy trial motion, and both the prosecutor and defense counsel testified at this
hearing.7 Defense counsel testified that he first asserted appellant’s right to a
speedy trial and moved to dismiss in March 2007, ten months after appellant was
7
At this hearing, the trial court took judicial notice of the file concerning
appellant’s previous habeas proceeding which related to this charge but had a
different cause number. Under that cause number, defense counsel had apparently
filed at least two motions to dismiss at a prior time. These motions are not
contained in the record in this case.
22
arrested with no indictment pending. The trial court apparently denied this motion,
relying on an affidavit from a Fort Bend County assistant district attorney who
averred that his office was waiting to indict appellant in the Wildman case until
after the Harris County District Attorney’s Office determined whether it was going
to seek the death penalty in the Barnum case. Defense counsel testified that he
filed a second motion to dismiss in October 2008, and, at that time, the same
assistant district attorney responded that he was still waiting on the State in the
Harris County case. Defense counsel alleged that this response from the assistant
district attorney was misleading because a Harris County prosecutor had already
informed him that the State was seeking the death penalty in the Barnum case, and
that case had an initial trial setting scheduled for September 2008. Counsel
testified that, in July 2009, the Harris County District Attorney’s Office asked the
Fort Bend prosecutors to proceed with the Wildman case first. Appellant was then
indicted in October 2009, more than three years after his arrest. Defense counsel
testified that appellant has suffered “terrible emotional strain and harm” and that,
in addition to the fact that this is a cold case, the pre-indictment delay has caused
“three more years of people’s memories fading, witnesses, a possibility of finding
them growing even more sparse and making [the case] far more difficult to
defend.”
23
The prosecutor testified that appellant posted bond in the Wildman case,
although he was then incarcerated in Harris County for the Barnum case. He also
testified that he was not assigned to the case until August 2009. He acknowledged
that the agreement with Harris County to let that case proceed first “would not
have prevented [the previous assigned Fort Bend County prosecutor] from getting
an indictment” in the Wildman case, but he did not think that appellant’s trial
would have occurred sooner, because, at the time, the two district attorney’s offices
had agreed to let Harris County try the Barnum case first.
The trial court ultimately denied appellant’s motion to dismiss for lack of a
speedy trial.
During the charge conference, defense counsel requested that three
instructions concerning third-party culpability be included in the written jury
charge. One of these instructions stated:
You have heard from the evidence that a person other than [the]
defendant committed the offense for which the defendant is charged.
The defendant is not required to prove the other person’s guilt. It is
the prosecution that has the burden of proving the defendant guilty
beyond a reasonable doubt; therefore, the defendant is entitled to an
acquittal.
If you have a reasonable doubt as to the defendant’s guilt, evidence
that another person committed the charged offense may by itself leave
you with a reasonable doubt. If after considering all the evidence,
including any evidence that another person committed the offense,
you have a reasonable doubt that the defendant committed the offense,
you must find the defendant not guilty.
24
The other two requested instructions were substantially similar. The trial court
denied all three of these proposed instructions. The charge did, however, include
the following limiting instruction concerning the Barnum offense:
You are instructed that if there is any testimony before you in this
case regarding the defendant’s having committed offenses other than
the offense alleged against him in the indictment in this case, you
cannot consider said testimony for any purpose unless you find and
believe beyond a reasonable doubt that the defendant committed such
other offenses, if any were committed, and even then you may only
consider the same in determining the identity or consent of the
defendant [sic], if any, in connection with the offense, if any, alleged
against him in the indictment in this case, and for no other purpose.
During deliberations, the trial court received a letter from one of the jurors.
In this letter, which was also signed by the jury foreperson, the juror requested the
substitution of an alternate juror for deliberations. She stated,
I have listened to all of the testimony and have seen all of the
evidence, and my mind, heart, body, and soul ALL agree with the
decision I have made. The problem is my decision differs from many
of my fellow jurors and I am beginning to feel attacked to change my
opinion. I am having headaches, stomach aches, and lack of sleep
since this trial has begun. I don’t know how this process goes, but I
don’t think I want to try to be persuaded to change my decision.
In response, defense counsel moved for a mistrial on the basis that the other jurors
were “coercing” this juror to change her decision.
The trial court took note of the juror’s statement that she did not want to “try
to be persuaded to change [her] decision” and stated that “the entirety of jury
deliberation is an exchange of opinions and ideas and considerations in an effort to
25
see if [the jury] can achieve a common decision.” The court denied the motion for
mistrial and sent the following response to the jury: “The law does not allow for
jury substitution in such a situation. Please continue your deliberations.”
Several hours later, the jury reached a verdict and found appellant guilty of
capital murder. Because the State did not seek the death penalty, the trial court
automatically assessed punishment at confinement for life.
Sufficiency of the Evidence
In his seventh issue, appellant contends that the State failed to prove that he
caused Wildman’s death during the commission of either aggravated sexual assault
or burglary of a habitation.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view all of the evidence
in the light most favorable to the verdict to determine whether any rational fact
finder could have found the essential elements of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);
Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that
Jackson standard is only standard to use when determining sufficiency of
evidence). Our review of “all of the evidence” includes evidence that was properly
and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (“When
26
conducting a sufficiency review, we consider all the evidence admitted, whether
proper or improper.”).
The jurors are the exclusive judges of the facts, the credibility of the
witnesses, and the weight to be given to the testimony. Bartlett v. State, 270
S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the
facts and reject another, and it may reject any part of a witness’s testimony. See
Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson
v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)
(stating jury can choose to disbelieve witness even when witness’s testimony is
uncontradicted). We may not re-evaluate the weight and credibility of the
evidence or substitute our judgment for that of the fact finder. Williams v. State,
235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete
deference to the jury’s determinations of credibility. See Lancon v. State, 253
S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the
evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.
App. 2000); see also 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 prosecution and therefore defer to that determination.”).
27
B. Capital Murder
To establish that appellant committed capital murder in the Wildman case,
the State had to prove that appellant intentionally committed the murder in the
course of committing or attempting to commit (1) aggravated sexual assault of
Wildman or (2) burglary of Wildman’s habitation. See TEX. PENAL CODE ANN.
§ 19.03(a)(2) (Vernon Supp. 2011). A person commits aggravated sexual assault
when the person intentionally or knowingly causes the penetration of the sexual
organ of another person by any means, without that person’s consent, and causes
serious bodily injury. Id. §§ 22.011(a)(1) (Vernon 2011), 22.021(a)(1)(A)(i),
22.021(a)(2)(A)(i) (Vernon Supp. 2011). Sexual assault is without the consent of
the other person if “the actor compels the other person to submit or participate by
the use of physical force or violence.” Id. § 22.011(b)(1); see also id. § 22.021(c)
(“An aggravated sexual assault under this section is without the consent of the
other person if the aggravated sexual assault occurs under the same circumstances
listed in Section 22.011(b).”).
A person commits the offense of burglary if, without the effective consent of
the owner, he enters a habitation and commits or attempts to commit a felony,
theft, or an assault. Id. § 30.02(a)(3) (Vernon 2011). In a capital murder
prosecution, the requirement that the defendant commit a felony is satisfied by the
actual murder of the victim. Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim.
28
Ohio App. 1995). Furthermore, when the indictment lists more than one predicate
felony in a capital murder prosecution, the evidence “need only be sufficient to
establish one of the underlying felonies in the indictment.” Id. Thus, if the
evidence is sufficient to establish the elements of burglary, we need not determine
whether the evidence is also sufficient to establish the elements of aggravated
sexual assault. See id.; see also McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim.
App. 1997) (“When a general verdict is returned and the evidence is sufficient to
support a finding of guilt under any of the paragraph allegations submitted, the
verdict will be upheld.”).
Here, Officer Weathers testified that he saw that a dining-room window had
two holes punched in the glass near the lock and that there was broken glass on the
ground. He opined that this was a common method for burglars to use to enter a
house without breaking an entire window. Detective Echols agreed that this was a
“fairly common” method of entry, and he further testified that although the dining-
room window screen “looked intact,” it was not properly affixed.
Upon his arrest for Wildman’s murder, appellant initially denied knowing
Wildman. He later acknowledged that he was present in Wildman’s home on the
night of her murder, although he testified that he was present several hours before
she died and that they engaged in consensual sex. He denied being present at the
time of her murder, and both his mother and his brother testified that they did not
29
hear appellant leave the house that evening. The jury, however, was not required
to believe this testimony, and we defer to the jury’s credibility determinations. See
Lancon, 253 S.W.3d at 705.
The State presented evidence that appellant admitted on three different
occasions that he killed Wildman. He made his first admission on the night of the
murder to Brian and Delores Gable, admitting, while standing in their driveway
while police were still at Wildman’s house, that he “got into a scuffle,” and,
although he did not mean to do so, he killed Wildman. According to Delores
Gable, at Brian’s request for clarification, appellant pointed to Wildman’s house
and said that he was referring to “the white lady.” Appellant’s second admission
occurred while he was in the Harris County Jail in 2007 awaiting trial on the
Barnum murder. Late one evening, after Marvin Paxton told appellant to stop
teasing Adam Osani, appellant rushed to the bars in between his cell and Paxton’s
and told him to “shut [his] f——– mouth before I kill you like I did those two
bitches.” At a later date, Paxton had a conversation with appellant, and he asked
appellant whether his earlier admission was true. Appellant replied in the
affirmative and stated that he “lost his cool” and killed two women, indicating that
one of the women lived in either Fort Bend or Montgomery County. Appellant
told Paxton that he had had sex with both of the victims, although he did not
mention when he had sex with the women relative to their deaths.
30
Osani also testified that appellant overheard a conversation he had with
another inmate concerning his visit with a friend who worked at the Harris County
Medical Examiner’s Office. Appellant, who had previously bullied Osani, started
being much more friendly and asked Osani several “hypothetical” questions. He
asked, “Let’s just say, hypothetically, if somebody needed to collect DNA
evidence, would your friend be able to do that?” Appellant asked if Osani’s friend
had “jurisdiction” in Fort Bend County, and he indicated that if Osani and his
friend could help collect DNA evidence from a body, Osani would be paid “really
handsomely.”
The State therefore presented evidence that appellant entered Wildman’s
house without her consent, had sex with her, and fatally stabbed her multiple times.
Viewing the evidence in the light most favorable to the verdict, we conclude that a
rational factfinder could have found the essential elements of capital murder—that
appellant murdered Wildman in the course of committing burglary—beyond a
reasonable doubt.
We overrule appellant’s seventh issue.
Dismissal for Lack of a Speedy Trial
In his fifth issue, appellant contends that the trial court erred in denying his
motion to dismiss the indictment for lack of a speedy trial because the State did not
31
indict him for Wildman’s murder until nearly three and a half years after he was
arrested.
A. The Right to a Speedy Trial
The Sixth Amendment to the United States Constitution guarantees an
accused the right to a speedy trial. U.S. CONST. amend. VI; Barker v. Wingo, 407
U.S. 514, 515, 92 S. Ct. 2182, 2184 (1972); Cantu v. State, 253 S.W.3d 273, 280
(Tex. Crim. App. 2008). This right attaches once a person becomes an accused;
that is, once he is either arrested or charged. Cantu, 253 S.W.3d at 280. United
States Supreme Court precedent requires us to analyze constitutional speedy-trial
claims “on an ad hoc basis” by weighing and balancing the four factors enumerated
in Barker: (1) the length of the delay; (2) the reason for the delay; (3) the assertion
of the right; and (4) the prejudice to the accused. Barker, 407 U.S. at 530–33, 92
S. Ct. at 2192–93; Cantu, 253 S.W.3d at 280. Although the State bears the burden
of justifying the length of delay, the defendant bears the burden of proving that he
asserted the right and of showing prejudice. Cantu, 253 S.W.3d at 280. The Court
of Criminal Appeals has held that the defendant’s burden “‘varies inversely’ with
the State’s degree of culpability for the delay”; thus, “the greater the State’s bad
faith or official negligence and the longer its actions delay a trial, the less a
defendant must show actual prejudice or prove diligence in asserting his right to a
32
speedy trial.” Id. at 280–81 (quoting Robinson v. Whitley, 2 F.3d 562, 570 (5th
Cir. 1993)).
The Barker analysis is “triggered” by a delay unreasonable enough to be
considered “presumptively prejudicial.” Id. at 281. There is no set time period
that triggers the analysis. Id. Once the Barker analysis is triggered, we first weigh
the strength of each Barker factor and then balance the weight of the factors “in
light of ‘the conduct of both the prosecution and the defendant.’” Id. (quoting
Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). No one factor is
“either a necessary or sufficient condition to the finding of a deprivation of the
right of speedy trial.” Barker, 407 U.S. at 533, 92 S. Ct. at 2193. Instead, the four
factors are related, and we consider them together along with “such other
circumstances as may be relevant.” Id.; Cantu, 253 S.W.3d at 281 (“As no factor
possesses ‘talismanic qualities,’ courts must engage ‘in a difficult and sensitive
balancing process’ in each individual case.”).
We dismiss the charging instrument with prejudice only upon finding that
the defendant’s speedy trial right was “actually violated.” Cantu, 253 S.W.3d at
281. We must “apply the Barker balancing test with common sense and sensitivity
to ensure that charges are dismissed only when the evidence shows that a
defendant’s actual and asserted interest in a speedy trial has been infringed.” Id.
33
B. Standard of Review
In reviewing the trial court’s ruling on a defendant’s speedy trial claim, we
apply a bifurcated standard of review. Id. at 282; Zamorano, 84 S.W.3d at 648.
We review the “factual components” for an abuse of discretion and the “legal
components” de novo. Cantu, 253 S.W.3d at 282; Zamorano, 84 S.W.3d at 648.
Reviewing the individual Barker factors “necessarily involves fact determinations
and legal conclusions,” but the balancing test “as a whole” is a “purely legal
question.” Cantu, 253 S.W.3d at 282. We defer not only to the trial court’s
resolution of disputed facts, but also to its right to draw reasonable inferences from
those facts. Id. (citing Kelly v. State, 163 S.W.3d 722, 726–27 (Tex. Crim. App.
2005)). When assessing the evidence presented at a speedy trial hearing, the trial
court may completely disregard a witness’s testimony based on credibility and
demeanor evaluations, even if the testimony is uncontradicted, and it may
disbelieve any evidence as long as there is a reasonable and articulable basis for
doing so. Id. (citing Kelly, 163 S.W.3d at 727–28). On appeal, we must view the
evidence in the light most favorable to the trial court’s ultimate ruling. Id. (citing
Zamorano, 84 S.W.3d at 648).
34
C. Analysis
1. Length of the Delay
The length of the delay between the defendant’s arrest and his indictment
acts as a “triggering mechanism,” for until the delay is “presumptively prejudicial,”
there is no necessity to inquire into the other Barker factors. Barker, 407 U.S. at
530, 92 S. Ct. at 2192; Zamorano, 84 S.W.3d at 648. The length of delay “that
will provoke such an inquiry is necessarily dependent on the peculiar
circumstances of the case.” Barker, 407 U.S. at 530–31, 92 S. Ct. at 2192. If the
accused demonstrates that the delay qualifies as “presumptively prejudicial,” we
must then consider “the extent to which that delay stretches beyond the bare
minimum needed to trigger judicial examination of the claim.” Zamorano, 84
S.W.3d at 649. The presumption that pretrial delay has prejudiced the accused
“intensifies over time.” Id. Thus, “any speedy trial analysis depends first upon
whether the delay is more than ‘ordinary’; if so, the longer the delay beyond that
which is ordinary, the more prejudicial that delay is to the defendant.” Id.
In this case, appellant was arrested for the Wildman murder on May 2, 2006,
and he was not indicted until October 26, 2009, a delay of three years and five
months. Appellant was released on bond in the Wildman case shortly after he was
arrested, and he remained at liberty until he was arrested on December 2, 2006, for
the Barnum murder. Appellant remained incarcerated for the Barnum murder until
35
the time of his trial in the Wildman case. Appellant moved to dismiss the
indictment in the Wildman case on January 25, 2010, and the trial court heard the
motion on March 5, 2010.
The State concedes that the three-year-and-ten month delay between
appellant’s arrest and the date the trial court heard his motion to dismiss is
sufficiently lengthy to trigger our analysis of the other Barker factors. We agree.
Because the length of the delay “stretched well beyond the bare minimum needed
to trigger judicial examination of the claim, this factor . . . weighs heavily against
the State.” See id. (holding two-year-ten-month delay between arrest and hearing
on speedy trial motion sufficiently lengthy to trigger Barker analysis).
2. Reasons for the Delay
Related to the length of the delay is the reason that the government assigns
to justify the delay. Id. (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2182). The
State bears the burden of justifying the length of the delay. Cantu, 253 S.W.3d at
280. A “deliberate attempt” on the part of the State to delay the trial to hamper the
defense weighs heavily against the government, “while a more neutral reason such
as negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the defendant.”
Zamorano, 84 S.W.3d at 649 (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2182).
36
The fact that the defendant is being prosecuted on other charges constitutes a valid
reason for a delay in bringing him to trial on the charged offense at issue. Easley v.
State, 564 S.W.2d 742, 745 (Tex. Crim. App. 1978); McIntosh v. State, 307
S.W.3d 360, 367 (Tex. App.—San Antonio 2009, pet. ref’d) (“The prosecution of
the defendant on other charges may be a valid reason for a delay in bringing him to
trial.”); Thompson v. State, 983 S.W.2d 780, 783 (Tex. App.—El Paso 1998, pet.
ref’d) (“Prosecution of the defendant on other charges is a valid reason for delay
and does not weigh against the State so long as the amount of delay is
appropriate.”). To sustain its burden on this factor, however, the State must offer
argument and proof that the defendant was being prosecuted on other charges.
McIntosh, 307 S.W.3d at 367; see also Cerf v. State, No. 07-10-00451-CR, 2012
WL 1252963, at *7 (Tex. App.—Amarillo Apr. 12, 2012, no pet. h.) (“[D]uring
some of the delay at issue here, appellant was preparing for earlier filed charges in
Dawson County. So, although the State’s argument and proof on that issue is not
overwhelming, some of the delay could be attributable to that unrelated
proceeding.”).
At the hearing on appellant’s motion to dismiss, the State asserted that the
pre-indictment delay was due to an agreement with Harris County, whereby the
respective district attorneys’ offices agreed that Harris County would proceed first
on the Barnum case, in which it was potentially seeking the death penalty, and Fort
37
Bend County would wait to prosecute the Wildman case, which was not a death
penalty case. According to the State, on July 23, 2009, Harris County ultimately
requested, due to problems with its case, that Fort Bend County prosecute the
Wildman case first. Fort Bend County then assigned a new prosecutor to the
Wildman case, and, after he familiarized himself with the case, he obtained an
indictment in October 2009. The State conceded that its agreement with Harris
County did not affect its ability to obtain a formal indictment against appellant.
The State thus asserted a valid reason for its delay in bringing appellant to
trial on the Wildman case: due to the pending charges in two different
jurisdictions, the Fort Bend County District Attorney’s Office and the Harris
County District Attorney’s Office had an agreement that Harris County would
prosecute the Barnum murder first. It was only after Harris County re-evaluated
the Barnum case and determined that it had problems with the case that the
respective district attorneys’ offices agreed that Fort Bend County would prosecute
the Wildman case. The State obtained an indictment in the Wildman case within
three months of this decision. Prosecution of the defendant for unrelated charges
in a different jurisdiction constitutes a valid reason for delay. See Easley, 564
S.W.2d at 745; McIntosh, 307 S.W.3d at 367; Thompson, 983 S.W.2d at 783. This
factor, therefore, is neutral in the balancing analysis.
38
3. Assertion of the Right
Although it is the State’s duty to bring the defendant to trial, the defendant
does have the responsibility to assert his right to a speedy trial. Cantu, 253 S.W.3d
at 282; Zamorano, 84 S.W.3d at 651. “Whether and how a defendant asserts this
right is closely related to the other three factors because the strength of his efforts
will be shaped by them.” Cantu, 253 S.W.3d at 282–83; Zamorano, 84 S.W.3d at
651. Therefore, the defendant’s assertion of his speedy-trial right, or his failure to
assert it, “is entitled to strong evidentiary weight in determining whether the
defendant is being deprived of the right.” Cantu, 253 S.W.3d at 283; Zamorano,
84 S.W.3d at 651 (“Conversely, a failure to assert the right makes it difficult for a
defendant to prove that he was denied a speedy trial.”). Filing for dismissal of the
indictment instead of moving for a speedy trial generally weakens the defendant’s
claim “because it shows a desire to have no trial instead of a speedy one.” Cantu,
253 S.W.3d at 283. If the defendant
fails to first seek a speedy trial before seeking dismissal of the
charges, he should provide cogent reasons for this failure. Repeated
requests for a speedy trial weigh heavily in favor of the defendant,
while the failure to make such requests supports an inference that the
defendant does not really want a trial, he wants only a dismissal.
Id.
“Although one cannot file a motion for a speedy trial until formal charges
are made, the right to one can be asserted in other ways.” Id. Invocation of the
39
speedy-trial right “need not await indictment, information, or other formal charge.”
Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 304 (1975); Cantu,
253 S.W.3d at 284 (“Because appellant never asked for a speedy trial—he asked
only for a dismissal—it was incumbent upon him to show that he had tried to get
the case into court so that he could go to trial in a timely manner.”). An accused
who has been arrested but not charged has two choices: (1) wait until he is
charged, file a motion requesting a speedy trial, and, if the trial court does not grant
this motion, then file a motion to dismiss “because he has diligently sought what he
is entitled to—a speedy trial,” or (2) wait until he is charged and file a motion to
dismiss “if he can show that he diligently tried to move the case into court before
formal charges were filed.” Cantu, 253 S.W.3d at 284.
Defense counsel first moved to dismiss in March 2007, and he then filed an
amended motion to dismiss in October 2008.8 At the time of these first two
motions, no indictment had been returned in the Wildman case. Defense counsel
filed the third motion to dismiss, the subject of the speedy-trial hearing, in January
2010, three months after the State indicted appellant. All three of these motions
sought dismissal of the charges against him; appellant never demanded a speedy
trial. Aside from the first two motions to dismiss, defense counsel did not testify
8
Neither of these motions are included in the record. Thus, the only evidence that
defense counsel filed these two motions is counsel’s testimony to this effect at the
speedy-trial hearing.
40
that he took any other actions to try “to move the case into court before formal
charges were filed.” Id.
Appellant only sought dismissal of the charges against him, instead of
demanding a speedy trial, and he presented no evidence that he or his counsel
made any attempts to “diligently [try] to move the case into court before formal
charges were filed.” Id. These facts suggest that appellant “[did] not really want a
trial, he [wanted] only a dismissal.” Id. at 283. We conclude that this factor
weighs against appellant.
4. Prejudice Caused by the Delay
When we analyze the fourth factor—the extent to which the delay has
prejudiced the defendant—we do so in light of the defendant’s interests that the
speedy-trial right was designed to protect: (1) to prevent oppressive pretrial
incarceration; (2) to minimize the accused’s anxiety and concern; and (3) to limit
the possibility that the accused’s defense will be impaired. Id. at 285; Zamorano,
84 S.W.3d at 652. The last type of prejudice is the most serious “because the
inability of a defendant adequately to prepare his case skews the fairness of the
entire system.” Cantu, 253 S.W.3d at 285 (quoting Dragoo v. State, 96 S.W.3d
308, 316 (Tex. Crim. App. 2003)); Zamorano, 84 S.W.3d at 652 (“[A] defendant’s
claim of a speedy trial violation need not necessarily demonstrate prejudice to his
ability to present defensive matters.”). Evidence of the defendant’s generalized
41
anxiety, although relevant, “is not sufficient proof of prejudice under the Barker
test, especially when it is no greater anxiety or concern beyond the level normally
associated with a criminal charge or investigation.” Cantu, 253 S.W.3d at 286.
Appellant argues that “at least one key witness,” Officer Cates, died prior to
trial and thus his testimony, needed to establish the chain of custody of the condom
found at the Barnum murder scene, was unavailable. Appellant provided no
evidence of when Officer Cates died, and the record does not reflect whether Cates
died during the time period between appellant’s arrest and indictment. He does not
explain how the death of Officer Cates prejudiced him in any way, rather than
benefitting him.
Although appellant argues that he “has worry [sic] over lapsed memories of
witnesses,” this prosecution was of a cold-case murder that occurred sixteen years
before appellant’s arrest. Memory loss was therefore a potential problem
regardless of how quickly the State indicted and brought appellant to trial after his
arrest. At the hearing on the motion to dismiss, defense counsel testified that the
post-arrest delay has caused “three more years of people’s memories fading,
witnesses, a possibility of finding them growing even more sparse and making it
far more difficult to defend.” Defense counsel did not, however, identify specific
problems due to faded memories or specific witnesses, other than Officer Cates,
42
who were unavailable due to the delay. Nor does he indicate how he was
prejudiced by the faded memories of any witness. See id. at 285.
Regarding appellant’s anxiety and concern during the pre-indictment delay,
appellant himself did not testify during the hearing. Instead, defense counsel
testified:
I’ve dealt with him and met with him, talked with him many times.
The emotional strain of being under charges in a county and you can’t
even get an indictment and get into a courtroom to proceed for your
innocence, is a terrible emotional strain and harm to this defendant.
Defense counsel presented no further testimony regarding appellant’s anxiety—
such as anxiety-induced illnesses or other physical manifestations—or other
hardships caused by the delay. Appellant thus presented no evidence that he
suffered from any anxiety greater than that normally experienced by defendants
facing criminal prosecution. This factor, therefore, weighs against dismissal of the
indictment.
5. Balancing of Barker Factors
The delay in this case between appellant’s arrest and his indictment—three
years and five months—was presumptively prejudicial and weighs in favor of
dismissal on speedy-trial grounds. The State’s reason for the delay—the
agreement between the Fort Bend and Harris County District Attorneys’ Offices—
is neutral in the analysis, but the remaining two factors weigh against dismissal.
43
The State asserted a valid reason for the delay in bringing appellant to trial
on the Wildman case: the Fort Bend County District Attorney’s Office had an
agreement to let the Harris County District Attorney’s Office prosecute appellant
on the Barnum murder first. Once Harris County determined that it had problems
with the Barnum case, it agreed to let Fort Bend County’s prosecution of the
Wildman case proceed, and the State obtained an indictment on the Wildman case
within three months.
Appellant moved on three occasions for dismissal of the indictment, but he
never asserted his right to a speedy trial by actually requesting or demanding a
trial. This conduct indicates that what appellant truly sought was dismissal of the
charges and not a trial. See id. at 283 (“[T]he failure to make such requests [for a
speedy trial] supports an inference that the defendant does not really want a trial,
he wants only a dismissal.”). Moreover, appellant presented no evidence
concerning the efforts his counsel took to “move the case into court before formal
charges were filed.” See id. at 284.
Appellant was not incarcerated for the Wildman case during the time period
in between his initial arrest and the return of the indictment, and he presented no
evidence that he suffered from anxiety above and “beyond the level normally
associated with a criminal charge or investigation.” See id. at 286. Although
Officer Cates died during the interim time period between the Barnum murder in
44
1994 and the prosecution of the Wildman case in 2010, there is no evidence that he
died during the time period after appellant was arrested for the Wildman murder
but before he was indicted, nor is there any evidence that Officer Cates’s death
hindered appellant’s defense. Appellant also presented no evidence concerning
specific memory problems relating to specific witnesses, nor did he address how
any memory problems that did exist were the result of the pre-indictment delay
instead of the fact that this was a cold-case prosecution of a nearly twenty-year-old
crime. Finally, appellant makes no showing that he was prejudiced by the fading
memories of any witness.
We therefore conclude that, when balancing the four Barker factors,
appellant has not demonstrated that the trial court erred when it denied his motion
to dismiss the indictment on speedy trial grounds.
We overrule appellant’s fifth issue.
Admission of Extraneous Offense
In his first and second issues, appellant contends that the trial court
erroneously admitted evidence of the extraneous Barnum murder in violation of
Texas Rules of Evidence 404(b) and 403. In his third and fourth issues, appellant
contends that the trial court erroneously admitted evidence of the terroristic threat
made to Paxton, which referenced the Barnum murder, in violation of Rules 404(b)
and 403.
45
A. Standard of Review
We review a trial court’s decision to admit evidence concerning an
extraneous offense for an abuse of discretion. See Page v. State, 137 S.W.3d 75,
78 (Tex. Crim. App. 2004) (“A trial court’s Rule 404(b) ruling is reviewed under
an abuse of discretion standard.”); Jabari v. State, 273 S.W.3d 745, 751 (Tex.
App.—Houston [1st Dist.] 2008, no pet.). As long as the trial court’s ruling is
within the “zone of reasonable disagreement,” the court does not abuse its
discretion, and we will uphold the ruling. Jabari, 273 S.W.3d at 751; Thomas v.
State, 126 S.W.3d 138, 143 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).
B. Admissibility under Rule 404(b)
The general rule is that a defendant may not be tried for a collateral crime or
for being a criminal generally, which is why Rule 404(b) prohibits the admission
of an extraneous offense at trial to prove a defendant’s character or to show that the
defendant acted in conformity with that character. TEX. R. EVID. 404(b); Jabari,
273 S.W.3d at 751; Curtis v. State, 89 S.W.3d 163, 170 (Tex. App.—Fort Worth
2002, pet. ref’d). Extraneous offenses may, however, be admissible for other
purposes, such as to show motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b);
Jabari, 273 S.W.3d at 751.
46
1. Identity
An extraneous offense may be admissible to prove identity only if the
identity of the perpetrator is at issue in the case. Page, 137 S.W.3d at 78 (“For
proof of identity to be a valid purpose, it must be an issue in the case.”); see also
Jabari, 273 S.W.3d at 751. Identity can be raised by cross-examination, such as
the impeachment of the identifying witness on a material detail of identification, or
by presenting an alibi defense. Page, 137 S.W.3d at 78; Jabari, 273 S.W.3d at
751; see also Hudson v. State, 112 S.W.3d 794, 801 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d) (“In raising a defensive theory, a defendant opens the door
for the State to offer rebuttal testimony concerning an extraneous offense if the
extraneous offense has characteristics common with the offense for which the
defendant is being tried.”).
Raising the issue of identity “does not automatically render evidence of an
extraneous offense admissible.” Jabari, 273 S.W.3d at 751 (citing Page v. State,
213 S.W.3d 332, 336 (Tex. Crim. App. 2006)). “When the extraneous offense is
introduced to prove identity by comparing common characteristics, it must be so
similar to the charged offense that the offenses illustrate the defendant’s
‘distinctive and idiosyncratic manner of committing criminal acts.’” Page, 213
S.W.3d at 336 (quoting Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim. App.
2005)); see also Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008)
47
(“Usually, it is the accretion of small, sometimes individually insignificant details
that marks each crime as the handiwork or modus operandi of a single
individual.”). Extraneous offense evidence is admissible to prove identity “when
the common characteristics of each offense are so unusual as to act as the
defendant’s ‘signature.’” Page, 213 S.W.3d at 336 (quoting Taylor v. State, 920
S.W.2d 319, 322 (Tex. Crim. App. 1996)); see also Russell v. State, 113 S.W.3d
530, 541 (Tex. App.—Fort Worth 2003, pet. ref’d) (“[T]o be admissible to show
identity, an extraneous offense must be so similar to the charged offense as to mark
the offenses as the defendant’s handiwork.”) (emphasis in original). The
“signature” must be apparent from a comparison of the circumstances in both
cases. Page, 213 S.W.3d at 336 (citing Bishop v. State, 869 S.W.2d 342, 346 (Tex.
Crim. App. 1993)). “Without a high degree of similarity, the probative value of
the extraneous offense evidence is outweighed by its prejudicial effect.” Jabari,
273 S.W.3d at 752 (citing Bishop, 869 S.W.2d at 346). In reviewing the trial
court’s determination, we consider the specific characteristics of the offenses and
the time interval between them. Id. (citing Thomas, 126 S.W.3d at 144).
“Sufficient similarity may be shown by proximity in time and place or by a
common mode of committing the offenses.” Id. (citing Lane v. State, 933 S.W.2d
504, 519 (Tex. Crim. App. 1996)) (emphasis in original).
48
Here, the State presented evidence that appellant knew both Wildman and
Barnum and that he had a friendly, or even flirtatious, relationship with both
women. Appellant acknowledged that he had sex with both women, and DNA
evidence revealed the presence of appellant’s DNA in Wildman’s vagina at the
time of her murder and in a condom located on Barnum’s bed on the night of her
murder. See Segundo, 270 S.W.3d at 89 (“DNA found in both murder victims
matched appellant’s DNA profile—it is as if appellant left his calling card in both
Vanessa and Maria or carved a ‘Z’ upon their foreheads as his unique signature.”).
Both Wildman and Barnum were single women who lived alone, and both women
were, or had an interest in being, topless dancers. In both instances, there was no
physical evidence of forcible, nonconsensual sex, but there was evidence of forced
entry into the victims’ homes. Both women were violently attacked at night, in
their bedrooms, possibly while on their beds, and there was evidence that both
women were restrained in some manner during the attack—officers discovered
blood and hair consistent with Wildman’s on a chain on her bed, and Barnum’s
hands were tied behind her back and she had a belt wrapped around her neck. Both
women suffered multiple fatal stab wounds.
Appellant attempts to distinguish Segundo by pointing out that, in ruling that
the extraneous offense was admissible to prove identity, the Court of Criminal
Appeals found several similarities in the circumstances and manner of the victims’
49
death in addition to the presence of the defendant’s DNA. See id. (“Second, the
similarities between the two offenses marked them as products of appellant’s
modus operandi: both victims were manually strangled; both had been raped
immediately before their deaths; their bodies were nude from the waist down;
appellant’s DNA was found in the vaginas of both victims. The similarities of
these details are sufficient to mark the two rape-murders as the handiwork of a
single person, appellant.”). Appellant identified several dissimilarities between
Wildman’s and Barnum’s murders that, he contends, renders the extraneous
Barnum murder inadmissible to show identity. Specifically, he points out that
Barnum’s murder occurred four years after Wildman’s; that Wildman was
Caucasian and Barnum was African-American; that Wildman was thirty-eight and
Barnum was twenty-three; that the women had different body sizes; that the
murders occurred in different parts of the greater-Houston area; that Barnum
suffered several different types of injuries in addition to being stabbed, while
Wildman was merely stabbed; that Wildman was found unclothed while Barnum
was fully dressed; and that appellant’s DNA was found in Wildman’s vagina but
was found in a condom located on Barnum’s bed.
In Segundo, however, the Court of Criminal Appeals noted that
dissimilarities existed between the charged crime and the extraneous offense, but it
concluded that “[a]ll other dissimilarities between the offenses—years between the
50
crimes, age of the victims, location, and so forth—are immaterial to the singular
relevant fact: appellant’s semen was deposited in [the victims’] vaginas at or near
the time of their strangulation deaths.” Id. at 89–90. Here, although there are
some differences in the surrounding circumstances and the ways in which
Wildman and Barnum were murdered, there are also enough similarities such that
the presence of appellant’s DNA at the murder scene, either in or close to the
victims’ bodies, is not the only “significant similarit[y]” that the two offenses have
in common.
We hold that the trial court reasonably could have concluded that the
Barnum murder was sufficiently similar to the Wildman murder such that evidence
of the Barnum murder was admissible to prove identity in the Wildman case. We
therefore hold that the trial court did not abuse its discretion in admitting evidence
of the Barnum murder pursuant to Rule 404(b).
We overrule appellant’s first issue.9
C. Admissibility under Rule 403
In his second issue, appellant contends that, even if evidence of the Barnum
murder is admissible under Rule 404(b), the trial court abused its discretion in
9
Because we conclude that the Barnum murder was sufficiently similar to the
Wildman murder such that evidence of the Barnum murder was admissible to
prove identity, we need not consider whether evidence of the Barnum murder was
admissible to prove consent, which was raised by appellant in a sub-issue to his
first issue.
51
admitting the evidence because the probative value of the Barnum murder is
substantially outweighed by its prejudicial effect, and, therefore, the trial court
should have excluded the evidence pursuant to Rule 403.
Even when the admission of extraneous offense evidence is permissible
under Rule 404(b), we must still determine whether the probative value of the
offense is substantially outweighed by the danger of unfair prejudice under Rule
403. TEX. R. EVID. 403; Jabari, 273 S.W.3d at 752; Blackwell v. State, 193
S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We consider the
following factors when conducting a Rule 403 analysis: (1) the strength of the
extraneous offense evidence to make a fact of consequence more or less probable;
(2) the potential of the extraneous offense to impress the jury in some irrational but
indelible way; (3) the time during trial that the State requires to develop evidence
of the extraneous misconduct; and (4) the need by the State for the extraneous
evidence. Blackwell, 193 S.W.3d at 9 (citing Wheeler v. State, 67 S.W.3d 879, 888
(Tex. Crim. App. 2002)). We uphold the trial court’s ruling on a Rule 403
balancing test, whether explicit or implied, if it is within the zone of reasonable
disagreement. Jabari, 273 S.W.3d at 753.
The first factor in the Rule 403 balancing analysis is the strength of the
extraneous offense evidence to make a fact of consequence more or less probable.
Blackwell, 193 S.W.3d at 15. At trial, appellant disputed his identity as the
52
murderer and raised an alibi defense, contending that, although he had consensual
sex with Wildman on the night of her murder, he was at his own house at the time
she was killed. The Barnum murder, which shares several characteristics with the
Wildman murder, most notably the presence of appellant’s DNA at the scene, “is
compelling as to the issue of identity” and is probative of appellant’s identity as the
perpetrator of Wildman’s murder. Jabari, 273 S.W.3d at 753; Blackwell, 193
S.W.3d at 15 (“The extraneous offense evidence was probative of appellant’s
intent to commit the sexual offense against J.H. by showing that appellant had a
similar sexual intent with K.S. and C.R. . . .”). Because this extraneous offense
evidence makes appellant’s identity as Wildman’s murderer more probable, this
factor “weighs strongly in favor of admissibility.” Blackwell, 193 S.W.3d at 15.
The second factor requires that we examine the extraneous offense evidence
“for its potential to impress the jury in some irrational but indelible way,” such as
character conformity. Id. An impermissible inference of character conformity,
however, can be minimized by the use of a limiting instruction. Jabari, 273
S.W.3d at 753; Blackwell, 193 S.W.3d at 15 (“The trial court’s instructions to the
jury are a factor to consider in determining whether the jury considered the
extraneous-offense evidence improperly, i.e., as character conformity evidence, or
properly, as evidence to rebut a defensive theory or some other permissible reason
under rule 404(b).”). We must further consider the “emotional weight” of the
53
extraneous offense evidence and whether that evidence was “graphic.” Blackwell,
193 S.W.3d at 17.
Here, two officers described Barnum’s injuries, which were numerous and
severe, although they did not spend a large amount of their testimony dwelling on
the nature of Barnum’s injuries. The trial court admitted twenty-two pictures
relating to the Barnum murder, eleven of which showed Barnum’s body either at
the murder scene or at the medical examiner’s office. Although these pictures
depicted Barnum’s injuries, they were not “overly graphic,” and they contained
significantly less blood and gore than the pictures of the Wildman scene. See id.
In addition, these pictures were some evidence of the similarity in the modus
operandi of the attacks, which is highly probative. See Segundo, 270 S.W.3d at
89; see also TEX. R. EVID. 403 (“Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice . . . .”).
Moreover, before the trial court allowed the State to present evidence of the
Barnum murder, the court gave the following limiting instruction to the jury:
[W]e have another witness who also could give some testimony
related to an extraneous offense. So, again, I want to advise you that
this testimony is given for the limited purpose of establishing consent
or identity, and you are not to consider it unless you believe beyond a
reasonable doubt [that] the defendant was guilty of the offense
mentioned.
54
The trial court included a substantially similar instruction in the written charge.
These instructions thus informed the jury that it could consider the Barnum
evidence only for the purposes of establishing consent or identity, and not for
character-conformity purposes. See Blackwell, 193 S.W.3d at 17 (“The jury here
was therefore adequately apprised that it could rely on the extraneous offense
evidence solely for other purposes than character-conformity evidence.”); see also
Jabari, 273 S.W.3d at 753 (“Here, the trial court instructed the jurors to limit their
consideration of the extraneous offense evidence.”). This factor, therefore, weighs
in favor of admissibility.
“The third factor evaluates the time during trial that the State required to
develop evidence of the extraneous misconduct.” Blackwell, 193 S.W.3d at 18.
Here, appellant’s trial lasted fourteen days. The jury heard seven days of evidence
pertaining solely to the Wildman murder. The State spent at least three full days
solely presenting evidence relating to the Barnum murder. At least four
witnesses—appellant, Investigator Swainson, Osani, and Paxton—presented
testimony relevant to both the Wildman and the Barnum murders. Approximately
one-third of the trial, therefore, was spent developing testimony relevant to the
Barnum murder. We conclude that this factor weighs against admissibility of the
Barnum offense. See Newton v. State, 301 S.W.3d 315, 321 (Tex. App.—Waco
2009, pet. ref’d) (holding factor weighed in favor of exclusion of extraneous
55
offense when evidence of extraneous offense amounted to approximately twenty-
seven percent of testimony at trial); Russell v. State, 113 S.W.3d 530, 546 (Tex.
App.—Fort Worth 2003, pet. ref’d) (holding same when evidence of extraneous
offense amounted to thirty percent of trial).
The fourth factor examines the State’s need for the evidence. This factor
favors admissibility of the extraneous Barnum murder. There were no
eyewitnesses to the Wildman murder, and, although appellant admitted that he was
present in Wildman’s home and had sex with her on the night of her murder, he
disputed the State’s theories that he sexually assaulted Wildman and that he was
present at the time of her murder. Appellant vigorously attacked the credibility of
Gable, Osani, and Paxton, all of whom claimed that appellant admitted his
involvement in the Wildman murder to them, and he presented alibi testimony
from his mother and younger brother. Appellant’s DNA at the Wildman scene
establishes that he was present in her house and that, at some point, he had sex
with Wildman, but it “does not directly identify him as [Wildman’s] attacker.”
Jabari, 273 S.W.3d at 753.
When we consider all four factors together, only the third factor, the time
spent developing the evidence concerning the extraneous offense, weighs against
admissibility. We therefore conclude that the trial court was within the zone of
reasonable disagreement when it implicitly ruled that the probative value of the
56
extraneous Barnum murder was not substantially outweighed by its prejudicial
effect. See Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (“[Rule
403] envisions exclusion of evidence only when there is a ‘clear disparity between
the degree of prejudice of the offered evidence and its probative value.’”) (quoting
Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We hold that the
trial court did not abuse its discretion when it did not exclude evidence of the
Barnum murder pursuant to Rule 403.
We overrule appellant’s second issue.
D. Admissibility of Terroristic Threat to Paxton
In his third and fourth issues, appellant contends that “[t]he trial court erred
in allowing evidence of extraneous offenses of murder and terroristic threat told by
Adam Osani and Marvin Paxton in violation of” Rules 404(b) and 403. Appellant
argues that there is no way to determine to whom appellant was referring in his
terroristic threat—“Bitch, I’ll kill you like I did those other two bitches”—and
there is no way for the State to prove appellant’s guilt beyond a reasonable doubt.
He notes that Osani’s and Paxton’s testimony was contradictory and “contrary to
the counties and time involved in [the] Wildman and Barnum cases.”
The State did not offer Osani’s and Paxton’s testimony as evidence of an
extraneous offense separate and apart from the Barnum offense; instead, the State
offered this evidence as proof that appellant committed both the Wildman murder
57
and the extraneous Barnum murder. This statement is an admission by a party-
opponent, supporting the allegation that appellant killed Wildman and Barnum.
See TEX. R. EVID. 801(e)(2); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim.
App. 1999) (“Rule 801(e)(2)(A) plainly and unequivocally states that a criminal
defendant’s own statements, when being offered against him, are not hearsay.”);
see also Drone v. State, 906 S.W.2d 608, 611 (Tex. App.—Austin 1995, pet. ref’d)
(“[A]n inmate in the Milam County jail[] testified that he heard an argument
between appellant and another inmate during which appellant said, ‘I will kill you,
too.’ . . . [T]his was an admission by [a] party-opponent . . . .”). This is evidence
that the jury could consider when determining whether the State proved, beyond a
reasonable doubt, that appellant killed Wildman and committed the extraneous
Barnum murder. It was within the province of the jury to determine Osani’s and
Paxton’s credibility and to determine whether, assuming appellant made the threat,
he was referring to Wildman and Barnum.
The State was not required to prove, beyond a reasonable doubt, that
appellant actually made this threat to Paxton. Regardless, as the State notes, a
person commits the offense of terroristic threat if he “threatens to commit any
offense involving violence to any person . . . within intent to . . . place any person
in fear of imminent serious bodily injury.” TEX. PENAL CODE ANN. § 22.07(a)(2)
(Vernon 2011). Osani’s and Paxton’s testimony is some evidence that appellant
58
threatened to kill Paxton, which constitutes a threat to commit an offense involving
violence, and that appellant made the threat in order to make both men afraid of
him and his ability and willingness to use violence.
We overrule appellant’s third and fourth issues.10
Denial of Requested Third-Party Culpability Instruction
In his sixth issue, appellant contends that the trial court erred in denying his
requested jury instructions on the defense of third-party culpability.
The trial court shall “deliver to the jury . . . a written charge distinctly setting
forth the law applicable to the case [and] not expressing any opinion as to the
weight of the evidence . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon
2007). The trial court is required to instruct the jury on statutory defenses,
affirmative defenses, and justifications when they are raised by the evidence.
Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007). The defendant
is entitled to an instruction on every defensive issue raised by the evidence,
“regardless of whether the evidence is strong, feeble, unimpeached, or
contradicted, and even when the trial court thinks that the testimony is not worthy
of belief.” Id. at 209. The Court of Criminal Appeals has held, however, “that if
the defensive theory is not explicitly listed in the penal code—if it merely negates
10
To the extent appellant contends that the admission of this threat was erroneous
due to the reference to two murders, we note that we have already held that the
trial court properly admitted extraneous offense evidence concerning the Barnum
murder.
59
an element of the State’s case, rather than independently justifying or excusing the
conduct—the trial judge should not instruct the jury on it.” Id.; see also Giesberg
v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (“[B]ecause the authority to
establish what constitutes a defense rests solely with the Legislature, this Court
concludes [that] a defense which is not recognized by the Legislature as either a
defense or as an affirmative defense does not warrant a separate instruction.”).
In Giesberg, the Court of Criminal Appeals addressed whether the trial court
properly denied the defendant’s requested jury instruction concerning the defense
of alibi. In holding that the trial court correctly denied the instruction, the Court of
Criminal Appeals noted that alibi “was excluded from the Revised Penal Code’s
list of defenses and affirmative defenses because it only serves to negate a
necessary element of proof in the State’s case—the defendant’s presence at the
time and the location of the commission of the crime. An alibi does not attempt to
justify or excuse a defendant’s actions.” Giesberg, 984 S.W.2d at 248. Defensive
issues that merely negate an element of the offense alleged by the State “do[] not
place a burden of proof upon a defendant to establish [them].” Id. at 250. A
defense such as alibi “casts doubt upon whether the State has met its burden” and
is therefore “sufficiently embraced in a general charge to the jury that the
defendant is presumed innocent until he or she is proven guilty beyond a
reasonable doubt.” Id. Because a general charge adequately encompasses an alibi
60
defense, “a special instruction for the issue of alibi would needlessly draw a jury’s
attention to the evidence which raised alibi.” Id. Thus, the Court of Criminal
Appeals concluded, a specific instruction on an alibi defense “would constitute an
unwarranted comment on the weight of the evidence by the trial court.” Id.; see
also Walters, 247 S.W.3d at 212 (“In such a case, the non-statutory instruction
would constitute a prohibited comment on the weight of the evidence.”).
Here, during the charge conference, defense counsel requested the
submission of three substantively identical jury instructions relating to the defense
of third-party culpability. One of the instructions was worded as follows:
You have heard from the evidence that a person other than [the]
defendant committed the offense for which the defendant is charged.
The defendant is not required to prove the other person’s guilt. It is
the prosecution that has the burden of proving the defendant guilty
beyond a reasonable doubt; therefore, the defendant is entitled to an
acquittal.
If you have a reasonable doubt as to the defendant’s guilt, evidence
that another person committed the charged offense may by itself leave
you with a reasonable doubt. If after considering all the evidence,
including any evidence that another person committed the offense,
you have a reasonable doubt that the defendant committed the offense,
you must find the defendant not guilty.
The trial court denied all three instructions.
We conclude that the Giesberg rationale is applicable here. Appellant
sought the submission of three instructions calling the jury’s attention to the fact
that evidence was presented that MCPD officers had other suspects in the Wildman
61
case and that appellant was not present at the time that Wildman died and did not
commit the crime. Although appellant couches these requests as instructions on
the issue of “third-party culpability,” by requesting these instructions he is
essentially raising the defense of alibi. This defensive theory is not a statutory
defense, an affirmative defense, or a legal justification for the charged conduct.
And this defensive theory does not attempt to justify or excuse appellant’s conduct.
Instead, this defense negates an essential element of the State’s burden of proof,
namely, that appellant was present at the time of Wildman’s murder and committed
the charged acts. This defense thus simply attacks the issue of identity and “casts
doubt” upon whether the State has met its ultimate burden beyond a reasonable
doubt. See Giesberg, 984 S.W.2d at 250.
We therefore conclude, on the basis of Giesberg and its progeny, that
appellant’s third-party culpability defense does not entitle him to a specific jury
instruction, and that, indeed, giving such an instruction would unduly call the
jury’s attention to the specific evidence supporting the proposition that someone
else murdered Wildman and would constitute an impermissible comment on the
weight of the evidence. See Giesberg, 984 S.W.2d at 248–50; see also Walters,
247 S.W.3d at 212 (following Giesberg and holding that, “generally speaking,”
non-statutory jury instructions constitute impermissible comment on weight of
62
evidence). We hold that the trial court correctly denied appellant’s requested jury
instructions on the defense of third-party culpability.
We overrule appellant’s sixth issue.
Chain of Custody
In his eighth issue, appellant contends that the trial court erroneously
admitted the condom found at the Barnum murder, and the subsequent DNA
testing results derived from that condom, because the State failed to establish a
proper chain of custody.
Texas Rule of Evidence 901(a) provides that “[t]he requirement of
authentication or identification as a condition precedent to admissibility is satisfied
by evidence sufficient to support a finding that the matter in question is what its
proponent claims.” TEX. R. EVID. 901(a). This rule “does not require the State to
prove anything.” Silva v. State, 989 S.W.2d 64, 67–68 (Tex. App.—San Antonio
1998, pet. ref’d) (emphasis in original); see also Garner v. State, 939 S.W.2d 802,
805 (Tex. App.—Fort Worth 1997, pet. ref’d). Instead, “[i]t requires only a
showing that satisfies the trial court that the matter in question is what the State
claims; once that showing is made, the exhibit is admissible.” Garner, 939 S.W.2d
at 805. Evidence may be authenticated or identified by different methods,
including testimony from a witness with knowledge that an item is what it is
claimed to be. TEX. R. EVID. 901(b)(1); Dossett v. State, 216 S.W.3d 7, 17 (Tex.
63
App.—San Antonio 2006, pet. ref’d); Martinez v. State, 186 S.W.3d 59, 62 (Tex.
App.—Houston [1st Dist.] 2005, pet. ref’d).
The State meets the authentication requirement for admissibility once it “has
shown the beginning and the end of the chain of custody, particularly when the
chain ends at a laboratory. Any gaps and minor theoretical breaches go to the
weight rather than the admissibility of the evidence, absent a showing of
tampering.” Martinez, 186 S.W.3d at 62; see also Druery v. State, 225 S.W.3d
491, 503–04 (Tex. Crim. App. 2007) (“Absent evidence of tampering or other
fraud, which has not been presented here, problems in the chain of custody do not
affect the admissibility of the evidence. Instead, such problems affect the weight
that the fact-finder should give the evidence, which may be brought out and argued
by the parties.”). The trial court has discretion to determine the sufficiency of the
predicate of authentication, and, absent an abuse of that discretion, we will not
reverse the trial court’s judgment. Foster v. State, 101 S.W.3d 490, 498 (Tex.
App.—Houston [1st Dist.] 2002, no pet.). The trial court does not abuse its
discretion in admitting evidence where it reasonably believes that a reasonable
juror could find that the evidence has been authenticated or identified. Druery, 225
S.W.3d at 502; Dossett, 216 S.W.3d at 17.
Although Officer Cates died before appellant’s trial, and, thus, could not
provide testimony regarding the specific procedure he used for gathering the
64
bedsheet at Barnum’s apartment, the precise location where he discovered the
condom, or the condition of the condom when he discovered it, Officers Ruiz and
Null both testified that they observed Cates gather the corners of the sheet and
place it in a container. Officer Null testified that, later that day, Cates called him to
the crime scene unit office and showed him a plastic bag containing a used
condom. He identified the same plastic bag at trial, noting that it was brought to
court in an envelope labeled with Barnum’s name, the location of the offense, the
case number, and Officer Cates’s name and badge number.
Appellant makes no allegations of alteration, tampering, or fraud. In these
circumstances, problems in the chain of custody do not affect the admissibility of
the evidence, but rather they affect the weight the jury gives to the evidence. See
Druery, 225 S.W.3d at 503–04. Factors such as the apparent age of the condom,
its appearance when recovered, and whether any fluid was present in the condom
upon recovery are relevant to the question of whether appellant murdered Barnum
at or near the time they engaged in intercourse, which affects the similarity of the
Barnum murder to the Wildman murder; but the fact that testimony regarding these
factors is absent does not affect the admissibility of the condom itself. We
conclude that the State presented sufficient evidence for the trial court to conclude
that the matter in question—the condom recovered from Barnum’s bed—is what
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its proponent, the State, claims that it is. See TEX. R. EVID. 901(a); Garner, 939
S.W.2d 805.
We hold that the trial court could have reasonably believed that a reasonable
jury could find that the condom has been authenticated and identified, and,
therefore, the trial court did not abuse its discretion in admitting the condom and
the DNA evidence obtained from that condom. See Druery, 225 S.W.3d at 502;
Dossett, 216 S.W.3d at 17.
We overrule appellant’s eighth issue.
Juror Coercion
Finally, in his ninth issue, appellant contends that the trial court erroneously
denied appellant’s motion for mistrial made when a juror indicated that she was
being “attacked” or coerced to change her opinion by other jurors during
deliberations.
We review a trial court’s denial of a motion for mistrial for an abuse of
discretion. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
Appellant cites no authority for the proposition that alleged “coercion” of one juror
by her fellow jurors is a proper basis to grant a motion for mistrial.
During deliberations, the trial court received a note from a juror requesting
substitution of one of the alternate jurors. In the note, the juror stated,
I have listened to all of the testimony and have seen all of the
evidence, and my mind, heart, body, and soul ALL agree with the
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decision I have made. The problem is my decision differs from many
of my fellow jurors and I am beginning to feel attacked to change my
opinion. I am having headaches, stomach aches, and lack of sleep
since this trial has begun. I don’t know how this process goes, but I
don’t think I want to try to be persuaded to change my decision.
After the trial court informed the jury that the law does not allow for substitution of
jurors in this situation and that it should continue its deliberations, the jury
subsequently announced that it had reached a verdict. The jury found appellant
guilty, and, on defense counsel’s request, the trial court polled the jury. All of the
jurors, including the one who had written the note, informed the trial court that the
verdict was his or her own. Appellant presented no evidence that the juror who
had written the note “did not actually agree with the jury’s verdict after the verdict
was given.” See Franks v. State, 90 S.W.3d 771, 800 (Tex. App.—Fort Worth
2002, no pet.) (“In fact, Sawyer expressed agreement with the guilty verdict
directly after the verdict was read [in a jury poll].”).
Disagreements between jurors and attempts to influence the opinions of
fellow jurors are part and parcel of the deliberative process. In the absence of any
evidence that the juror returned a verdict that was not actually her own, we hold
that the trial court did not err in denying appellant’s motion for mistrial.
We overrule appellant’s ninth issue.
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Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Publish. TEX. R. APP. P. 47.2(b).
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