Eric Matsumura Duvall v. the State of Texas ( 2021 )

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
ERIC MATSUMURA DUVALL, § No. 08-19-00313-CR
Appellant, § Appeal from the
v. § Criminal District Court Number One
THE STATE OF TEXAS, § of El Paso County, Texas
Appellee. § (TC# 20160D01661)
OPINION
A jury convicted Appellant Eric Matsumura Duvall of capital murder for the death of
Michael Tapia, and the trial court sentenced him to life without parole. In two issues, Duvall
challenges the legal sufficiency of the evidence and the trial court’s admission of certain testimony.
Finding no error, we affirm.
I. BACKGROUND
On the evening of January 31, 2016, Sergeant Juan Ibarra of the El Paso Sheriff’s Office
(EPSO) responded to a report of a body found in a desertous area in El Paso County. Upon arrival,
Sergeant Ibarra discovered a body lying on the ground, face down, with no signs of life. Ibarra
noted the body had an apparent head trauma and blood was visible on the ground nearby. Two
bullet shell casings were found in the vicinity. Sergeant Ibarra formed an initial impression that
the body had been there for some time due to the coloring of some of the exposed skin.
The case was transferred to the major crimes section of the EPSO and assigned to Sergeant
Jerome Washington for investigation. 1 By the following day, the body had been identified as
Michael Tapia. Investigative efforts led to two suspects, Duvall and Tyler Hall. In obtaining arrest
warrants for both suspects, Sergeant Washington learned that both were enlisted in the U.S. Army
and stationed at Fort Bliss. After informing the Army’s Criminal Investigations Division, military
police arrested Duvall and Hall at Fort Bliss. Duvall and Hall were subsequently interviewed and
arrested by the EPSO in connection with Tapia’s death.
Duvall was charged by indictment with the capital murder of Tapia and trial was held
December 6-12, 2019. The State alleged Duvall committed capital murder while in the course of
committing or attempting to commit kidnapping. At trial, the State called five witnesses who
testified about events leading up to and occurring on January 16, 2016, and ultimately, the conduct
that led to Tapia’s capital murder. Additionally, the State called other witnesses including Tapia’s
cousin, various officers from EPSO who were involved in the investigation, two crime scene
investigators, two Customs and Border Protection agents, an officer with the Army’s Criminal
Investigations Division, the medical examiner who conducted Tapia’s autopsy, a forensic scientist,
and Katye Elston, who was dating Duvall prior to his arrest on the capital murder charge.
In its case-in-chief, the defense called two witnesses, Antonio Arias, a retired detective
who was present at Tapia’s autopsy, and Dr. Rascon, the medical examiner who conducted the
1
At the time, Washington was a detective in the EPSO’s major crimes section.
2
autopsy.2 The State and Duvall also presented a number of exhibits to the jury. The evidence
presented to the jury is detailed below.
A. Trial Testimony on the Events of January 16, 2016
The State’s five witnesses who ultimately testified about the events leading up to and
including January 16, 2016, included Kristan Arzate, Morgan Dailey, Troy Taylor, Cyruss
Cedillos, and Ariel Ochoa. All five were friends and associates of Duvall, and their collective
testimony was generally consistent: At some point in 2015, Duvall moved into a house on Sunset
Rose Drive with his friend, Noah Lindquist, and Lindquist’s cousin, Kristan Arzate. Arzate soon
learned that Duvall sold Ecstasy pills. Arzate began consuming Ecstasy and attending raves with
Duvall on a regular basis. Duvall eventually moved out of the Sunset Rose house and into a mobile
home, where Arzate occasionally visited, along with other members of their friend group,
including Michael Tapia (the victim in this case), Hall (the other individual arrested along with
Duvall), Arlene Pina, and the other four associate-witnesses, Troy Taylor, Cyruss Cedillos,
Morgan Dailey, and Ariel Ochoa. Tapia, Hall, Pina, Taylor, Cedillos, Dailey, and Ochoa all helped
Duvall sell Ecstasy pills. Dailey was also a member of Duvall’s and Hall’s Army unit.
In October of 2015, Tapia set up a narcotics deal for Duvall where two men were supposed
to pay an unusually high price for some Ecstasy pills. Duvall, Tapia, and Taylor met the buyers
together. Duvall and Tapia got into the buyers’ vehicle, and after a few minutes, Tapia quickly
exited the vehicle before it drove off with Duvall being held at gunpoint. Moments later, Duvall
fell out of the buyers’ moving vehicle and got back into the vehicle with Taylor and Tapia. As a
2
Dr. Rascon had previously testified as one of the State’s witnesses.
3
result of this incident, the group became suspicious of Tapia.3
On January 16, 2016, Arzate, Hall, Dailey, Ochoa, Tapia, and a neighbor named Edgar
were all present at the Sunset Rose house. Meanwhile, Duvall and Taylor were driving back from
attending a rave in Albuquerque, New Mexico. At some point that day, Hall discovered a bag
containing narcotics had been stolen from his vehicle. Hall, angry, questioned the others about
what may have happened to his narcotics. It was generally presumed amongst the group that the
neighbor, Edgar, had stolen the narcotics, and that Tapia was also possibly involved. The suspicion
of Tapia increased when he left the house with Edgar. Hall called Duvall, and after they spoke,
Hall, Ochoa, and Pina went to Duvall’s mobile home to retrieve some clothes and a rifle. At some
point during this time, Duvall and Taylor arrived at the Sunset Rose house.
Ultimately, Tapia was coaxed out of the neighbor’s house and brought back to the Sunset
Rose house, where Duvall and Pina angrily blamed him for the loss of the narcotics. Tapia, crying
and upset, borrowed Arzate’s cell phone to make calls to ask for money. At least one of those
phone calls was made to his cousin, Sasha Ortez. Tapia told his cousin he needed money because
“his friends got him in trouble.” When Tapia returned from making his calls, Hall, carrying a
handgun, grabbed Tapia by the arm and led him out of the house. Duvall grabbed a black and green
AR-15 rifle—presumably the one Hall had retrieved from Duvall’s trailer—and stated he was
going to kill Tapia. Duvall, Hall, Dailey, and Tapia got into Duvall’s truck and drove away.
Duvall eventually pulled off into a desertous area, where he, Hall, and Tapia exited the
3
Outside the presence of the jury, the trial court also heard testimony about the aftermath of this botched narcotics
deal, where Duvall allegedly lured the buyers to a location and delivered beatings with a crowbar. The testimony
regarding the unsuccessful deal was allowed admission for the purpose of establishing Duvall’s motive and intent to
kill Tapia, but the violent aftermath flowing from that transaction was not admitted and not heard by the jury.
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vehicle. Duvall grabbed the rifle from the bed of the truck and handed it to Hall, and the trio walked
into the desert, leaving Dailey behind at the truck. After a few minutes, Duvall and Hall returned
without Tapia. Hall put the rifle back in the bed of the truck and they drove away. Although Dailey
told investigators he heard a gunshot, at trial, he testified he did not hear a gunshot or see a muzzle
flash. Dailey testified the noise level was loud inside the truck due to music and the truck’s diesel
engine.
Duvall, Hall, and Dailey returned to the house about an hour after they had left. Duvall and
Hall were smiling, but Dailey was quiet and “looked like he [had] just [seen] a ghost.” Hall stated
openly that he had “double tapped”4 Tapia. Before Duvall, Hall, and Dailey left for a party, Duvall
told everyone in the house to keep their mouths shut and threatened to shoot people if they said
anything about the incident.
B. Duvall and Hall Arrested by U.S. Customs and Border Protection (CBP)
On January 24, 2016, CBP arrested Duvall and Hall as they crossed the border from
Mexico, attempting to smuggle Ecstasy pills and a Glock 10mm handgun into the United States.
During the arrest, CBP seized Duvall’s cell phone. The Army’s Criminal Investigations Division
(CID) took custody of Duvall and placed him in confinement at Fort Bliss beginning on January
25, 2016. The Army’s CID conducted a forensic data analysis of Duvall’s cell phone, which
yielded: (1) a photograph of an AR-15 rifle and (2) a series of January 16, 2016, text messages
between Duvall and Pina. Generally, the text message conversation between Duvall and Pina is
consistent with testimony given about the day Tapia was killed. Included in the text message thread
4
Arzate testified that he interpreted Hall’s statement that he “double tapped” Tapia to mean Hall had shot Tapia
twice.
5
is Pina informing Duvall that they “are gonna kill Michael[,]” that they “are going to beat him to
death and shoot him[,]” and again that they “are killing them[.]”
Katye Elston was dating Duvall at the time and was present at the border crossing when
Duvall and Hall were arrested. Sometime between January 20 and January 24, 2016, Duvall told
Elston that he had been robbed and that he and Hall “took care of it” by “knock[ing the person]
off.”
C. Autopsy of Tapia’s Body
Dr. Mario Rascon, the Chief Medical Examiner for the El Paso County Office of the
Medical Examiner, conducted an autopsy of Tapia’s body. Dr. Rascon concluded that Tapia died
from a gunshot wound to the neck and opined that Tapia’s manner of death was homicide. Dr.
Rascon declined to make a determination regarding Tapia’s day and time of death, testifying that
too many variables contribute to the rate of decomposition of bodies. Dr. Rascon further stated he
never includes time-of-death estimates in his autopsy reports because, in his opinion, no time-of-
death formula is reliable.
Duvall called Detective Antonio Arias, who was present during Tapia’s autopsy, to the
stand. Detective Arias testified that Dr. Rascon told him that Tapia’s body “might have been [in
the desert] about two days.” When he was recalled by Duvall, Dr. Rascon testified that while he
did not remember telling Detective Arias that Tapia’s body could not have been at the scene more
than two days, he did remember remarking that the body did not appear from the photographs to
have been present at the scene for a prolonged period of time. Dr. Rascon testified that his opinion
changed after the autopsy and a more thorough examination of the facts surrounding the case, and
that his conclusion was that the decomposition of Tapia’s body was consistent with a January 16
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date of death.
D. Other Evidence Recovered in the Investigation
During his investigation, Sergeant Washington obtained a search warrant for a storage unit
he believed belonged to Duvall, as well as a warrant for Hall’s Mitsubishi Eclipse. A search of the
storage unit yielded the following evidence: (1) narcotics paraphernalia; (2) counterfeit money; (3)
small baggies that often contain narcotics; (4) an Army uniform with the name “Duvall” on it; (5)
a postal package with the name “Eric Duvall” on it; and (6) loaded magazines and loose
ammunition. The magazines were for an AR-15 rifle, and some of the loose ammunition was of
the caliber used in an AR-15 rifle. Additionally, the loose AR-15 ammunition found in Duvall’s
storage unit appears to have the same headstamp as the two casings found near Tapia’s body,
including the initials “LC”. The Texas Department of Public Safety Firearms/Toolmarks
Laboratory Report identified the manufacturer of the two casings found near Tapia’s body as “Lake
City.” A search of Hall’s car yielded a small plastic baggie containing unknown pills and a black
and green AR-15 rifle. Subsequent testing established that the rifle recovered from Hall’s car was
the same one that fired the two cartridge cases recovered near Tapia’s body.
Following the presentation of evidence, the trial court issued jury instructions allowing for
a capital murder conviction under any of three theories of liability: that Duvall committed capital
murder (1) directly, (2) as a party along with Hall, or (3) as a conspirator along with Hall. The jury
returned a guilty verdict on the charge of capital murder. After Duvall elected for the trial court to
impose punishment, he was sentenced to life in prison.
This appeal followed.
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II. ISSUES PRESENTED
In Duvall’s first issue, he challenges the legal sufficiency of the evidence to support his
conviction for capital murder. In his second issue, Duvall argues the trial court erred in admitting
certain testimony by witness Troy Taylor, based on the accomplice-witness rule and Texas Rule
of Evidence 403.
We address Duvall’s issues in that order.
III. DISCUSSION
A. Issue One – Sufficiency of the Evidence
In his first issue, Duvall challenges the legal sufficiency of his conviction for capital
murder. Specifically, Duvall contends he was in military confinement at Fort Bliss during the
period of time that Tapia was killed, according to Dr. Rascon’s pre-autopsy estimate as to Tapia’s
time of death.
1. Standard of Review
Under a sufficiency of the evidence review, we view all evidence in the light most favorable
to the verdict in order to determine whether any rational fact finder could have found the crime’s
essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979);
Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). In considering the evidence, we
keep in mind that the trier of fact is the sole judge of the weight and credibility of the evidence and
we must presume that the fact finder resolved any conflicting inferences in favor of the verdict and
defer to that resolution. See TEX. CODE CRIM. PROC. ANN. art. 38.04; Dobbs v. State, 434 S.W.3d
166, 170 (Tex. Crim. App. 2014).
We must presume that the jury resolved any conflicting inferences from the evidence in
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favor of the verdict. Azzam v. State, No. 08-17-00137-CR, 2019 WL 457608, at *2 (Tex. App.—
El Paso Feb. 6, 2019, no pet.) (not designated for publication). We are not permitted to reevaluate
the weight and credibility of the evidence or substitute our judgment for that of the fact finder.
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Additionally, a lack of direct
evidence is not dispositive on the issue of the defendant’s guilt; circumstantial evidence on its own
can establish guilt. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
2. Applicable Law
In a criminal case, the State has the burden to prove each and every element of an offense
beyond a reasonable doubt, and the defendant in a criminal case is presumed to be innocent until
such proof is shown. TEX. CODE CRIM. PROC. ANN. art. 38.03; TEX. PENAL CODE ANN. § 2.01.
Relevant to the facts of this case, a person commits capital murder if he intentionally or knowingly
causes the death of another person while he is in the course of committing or attempting to commit
kidnapping. TEX. PENAL CODE ANN. §§ 19.02(b)(1), 19.03(a)(2). In Texas, kidnapping is
intentionally or knowingly abducting another person. TEX. PENAL CODE ANN. § 20.03. A person
acts intentionally when it is his conscious objective or desire to cause the result of his action. TEX.
PENAL CODE ANN. § 6.03(a). A person acts knowingly when he is aware that his conduct is
reasonably certain to cause the result. TEX. PENAL CODE ANN. § 6.03(b).
“A person is criminally responsible as a party to an offense if the offense is committed by
his own conduct, by the conduct of another for which he is criminally responsible, or by both.”
TEX. PENAL CODE ANN. § 7.01(a). A person is criminally responsible for the conduct of another if,
“acting with intent to promote or assist the commission of the offense, he solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense . . . .” TEX. PENAL CODE
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ANN. § 7.02(a)(2). In such a case, “[e]ach party to an offense may be charged with commission of
the offense.” TEX. PENAL CODE ANN. § 7.01(b). In determining whether the defendant acted as a
party, a reviewing court should consider the events occurring before, during, and after the offense,
and the reviewing court may rely on actions of the defendant that show an understanding and
common design to commit the offense. See King v. State, 29 S.W.3d 556, 564 (Tex. Crim. App.
2000).
A defendant may also be liable as a conspirator if, in the attempt to carry out a conspiracy
to commit one felony, another felony is committed by one of the conspirators, all conspirators are
guilty of the felony actually committed, though having no intent to commit that offense, if the
offense was committed in furtherance of the unlawful purpose and was one that should have been
anticipated as a result of carrying out the conspiracy. See TEX. PENAL CODE ANN. § 7.02(b).
3. Analysis
“[S]ufficiency of the evidence should be measured by the elements of the offense as defined
by the hypothetically correct jury charge for the case.” See Malik v. State, 953 S.W.2d 234, 240
(Tex. Crim. App. 1997). When the jury charge authorizes a conviction on any one of multiple
theories, as was the case here, a guilty verdict will be upheld if the evidence is sufficient on any
theory authorized in the charge. Anderson v. State, 416 S.W.3d 884, 889 (Tex. Crim. App. 2013)
(citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)). An essential element of any
offense is the defendant’s identity. See Russell v. State, 113 S.W.3d 530, 541 (Tex. App.—Fort
Worth 2003, pet. ref’d) (“Identity is an ‘elemental fact’ in every criminal case[.]”). A defendant
may place his identity in issue by raising an alibi defense. See Dickey v. State, 646 S.W.2d 232,
233 (Tex. Crim. App. 1983) (en banc).
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Aside from Duvall’s identity, the statutory elements of capital murder, as charged in the
indictment and applied to the facts of this case, are whether Duvall (1) intentionally or knowingly
(2) caused (3) the death of Tapia (4) while in the course of committing or attempting to commit
kidnapping, which is defined as abducting another person. Although Duvall does not use the word
“identity” or “alibi” in his brief filed in this appeal, we construe his legal sufficiency challenge
based on Dr. Rascon’s alleged pre-autopsy statement, coupled with Duvall’s period of
confinement, as an alibi defense and a challenge to the element of Duvall’s identity as the
perpetrator of Tapia’s capital murder. Here, we need only address the sufficiency of the evidence
as it pertains to the identity element of Duvall’s conviction because he does not challenge any
other element. See Murray v. State, 457 S.W.3d 446, 448 n.1 (Tex. Crim. App. 2015) (“We solely
address the sufficiency of the evidence as it pertains to the element of ‘operating’ in the DWI
statute because Appellant challenged only that element . . . .”).
Viewed in the light most favorable to the verdict, we determine the record contains legally
sufficient evidence to establish Duvall committed capital murder of Tapia or that he was at least a
party to the offense. The State called five witnesses who were present at the Sunset Rose house on
January 16, 2016, and who testified consistently about the events that took place that day, namely
that: (1) some pills were stolen from Hall’s car; (2) the group suspected Edgar and possibly Tapia
to have stolen the pills; (3) Tapia and Edgar left the Sunset Rose house together; (4) Hall was
angry and called Duvall to relay the information about the stolen pills; (5) Tapia ended up back at
the Sunset Rose house, where he made at least one phone call to try to get money to pay Hall back
for the pills; (6) when Duvall returned to the Sunset Rose house, Hall, armed with a pistol, grabbed
Tapia’s arm and led him to Duvall’s truck; (7) Duvall left the Sunset Rose house with a black and
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green AR-15 rifle; (8) Duvall, Hall, Dailey, and Tapia then drove away in Duvall’s truck; (9)
Duvall, Dailey, and Hall returned later without Tapia; (10) Hall bragged that he had “double
tapped” Tapia; and (11) Duvall threatened everyone else at the house and warned them not to
discuss the aforementioned events with anyone.
Part of that testimony was corroborated by Sasha Ortez’ testimony that Tapia called her on
January 16 asking for money because his friends had gotten him into trouble. Other parts are
corroborated by the January 16 text messages between Duvall and Pina found on Duvall’s phone,
where Pina is updating Duvall on the situation the witnesses describe and the pair discuss killing
Tapia as a result. We also consider Dailey’s testimony about what happened after he, Duvall, Hall,
and Tapia left the Sunset Rose house together, namely that: (1) they drove to a desertous area in
El Paso County; (2) Dailey remained in the truck while Duvall and Hall—armed with a pistol and
an AR-15—walked Tapia out into the desert at gunpoint; (3) Duvall and Hall returned several
minutes later without Tapia.
We do note that Duvall’s identity as the direct perpetrator of—or a party to—Tapia’s
capital murder is strongly tied to whether the offense occurred on January 16, 2016. Duvall argues
that because Dr. Rascon allegedly stated that Tapia’s body did not appear to have been in the desert
for more than a couple of days, Duvall could not have committed Tapia’s capital murder because
he was in confinement at Fort Bliss for the six days preceding the discovery of Tapia’s body.
Duvall called former Detective Antonio Arias to the stand to testify about a conversation he had
with Dr. Rascon during Tapia’s autopsy. Detective Arias testified that at the time of the autopsy,
Dr. Rascon estimated that Tapia’s body might have been in the desert for about two days. Duvall
then recalled Dr. Rascon to the stand, and essentially asked him to respond to what Detective Arias
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said. Dr. Rascon disagreed that he made the statement as Detective Arias recalled it, but instead
testified that “when the case was presented to me and I saw the first photo from the scene, I
remember thinking out loud, well, this doesn’t look like someone that has been out there for a
prolonged period of time.” Dr. Rascon further testified that there are too many factors that affect
body decomposition, including air temperatures and humidity, and that any estimate encompasses
such a broad range of time that it is often more accurate to use other facts known from an
investigation to determine an accurate date of death. Dr. Rascon testified that, because of the many
variables affecting body decomposition, he does not include date or time of death estimates in his
autopsy reports. Ultimately, Dr. Rascon testified that a date of death for Tapia of January 16, 2016,
was consistent with his autopsy findings.
Here, the record includes conflicting testimony about whether Dr. Rascon had given his
opinion to Detective Arias that Tapia’s body had only been in the desert two days prior to its
discovery on January 31. Detective Arias claims that Dr. Rascon made such a statement, while Dr.
Rascon denies that his statement was that specific. It was the jury’s responsibility to settle that
conflict in testimony, and they were free to believe Dr. Rascon over Detective Arias. If the jury
believed Dr. Rascon’s recollection of his statement, it would have been reasonable for them to
determine that two weeks was not “a prolonged period of time.” Even if the members of the jury
believed Detective Arias, they could have also believed Dr. Rascon when he testified that whatever
he said in Detective Arias’ presence was a preliminary and unreliable estimate without more facts,
which would also explain why Dr. Rascon made no such finding in his autopsy report. Finally, the
members of the jury were free to believe—no matter what Dr. Rascon may have stated before or
during Tapia’s autopsy—Dr. Rascon’s ultimate testimony, which was that nothing in the autopsy
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precluded a date of death of January 16, 2016.
As a result, we determine there was legally sufficient evidence of Duvall’s identity as the
direct perpetrator of, or at least as a party to, the capital murder of Tapia, on January 16, 2016.
Duvall’s first issue is overruled.
B. Issue Two – Admissibility of Certain Testimony
In his second issue, Appellant challenges the trial court’s admission of Troy Taylor’s
testimony about the botched narcotics deal that was set up by Tapia and ended with Duvall being
thrown from a moving vehicle. Duvall argues that the admission of this testimony violates the
accomplice-witness rule and, also, that it should have been excluded under Texas Rule of Evidence
403.
1. Standard of Review
We review a trial court’s ruling on the admissibility of evidence for abuse of discretion.
Montgomery v. State, 810 S.W.2d 372, 390-93 (Tex. Crim. App. 1991) (op. on reh’g). We will
uphold the trial court’s decision to admit or exclude evidence if it falls within the zone of
reasonable disagreement, and we afford “great discretion” to a trial court in its decision to admit
evidence and give corresponding deference to its evidentiary decisions. Id. at 378.
2. Applicable Law
Under the accomplice-witness rule, “[a] conviction cannot be had upon the testimony of
an accomplice unless corroborated by other evidence tending to connect the defendant with the
offense committed . . . .” TEX. CODE CRIM. PROC. ANN. art. 38.14. However, article 38.14 is a rule
for sufficiency review, not an evidentiary rule. Qualls v. State, 547 S.W.3d 663, 675 (Tex. App.—
Fort Worth 2018, pet. ref’d) (citing Kennedy v. State, 193 S.W.3d 645, 662 (Tex. App.—Fort
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Worth 2006, pet. ref’d) (op. on reh’g)). Stated differently, article 38.14 “does not govern the
admissibility of evidence; rather, it governs determinations of sufficiency of the evidence when an
accomplice testifies.” Id.A defendant’s remedy for a potential violation of the accomplice-witness rule is to request
a jury charge that informs the jury that it may not convict based solely on the testimony of an
accomplice. See Valdez v. State, No. AP-77,042, 2018 WL 3046403, at *17 (Tex. Crim. App.
2018) (not designated for publication). A defendant’s further remedy would be to object if a trial
court did not include such an instruction or—in the case where an instruction was included but the
jury convicted the defendant based solely on accomplice testimony anyway—to appeal the
conviction based on a lack of sufficient evidence. Id. But that is not the posture in which the
accomplice-witness rule is brought to our attention in this appeal. Instead, Duvall argues that the
rule should have barred the trial court from admitting what Duvall claims is uncorroborated
accomplice-witness testimony.
We agree with our sister court that article 38.14 does not govern the admissibility of
evidence. See Qualls, 547 S.W.3d at 675 (citing Kennedy, 193 S.W.3d at 662). Therefore, to the
extent that Duvall asks us to find that the trial court abused its discretion in admitting Taylor’s
testimony as a result of article 38.14, we decline to do so. However, Duvall did object in the trial
court to the admission of this evidence based on Rule 403, and he raises that issue on appeal as
well.5 Therefore, we construe Duvall’s second issue on appeal as a Rule 403 challenge, which, as
stated above, we review for an abuse of discretion.
5
As a final note on the accomplice-witness rule discussion, Duvall has not pointed to any location in the record—
nor can we find one—where he made any objection based on or related to the accomplice-witness rule.
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Relevant evidence may be excluded by the trial court if its probative value is substantially
outweighed by the danger of unfair prejudice. TEX. R. EVID. 403. In determining whether a trial
court’s admission or exclusion of evidence violated Rule 403, we balance the follow factors:
(1) the inherent probative value of the evidence and (2) the State’s need for
that evidence against (3) any tendency of the evidence to suggest a decision
on an improper basis, (4) any tendency to confuse or distract the jury from
the main issues, (5) any tendency to be given undue weight by a jury that
has not been equipped to evaluate the probative force of the evidence, and
(6) the likelihood that presentation of the evidence will consume an
inordinate amount of time or be needlessly cumulative.
Knight v. State, 457 S.W.3d 192, 204 (Tex. App.—El Paso 2015, pet. ref’d) (citing Gigliobianco
v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006)). Rule 403 favors the admission of
relevant evidence and carries a presumption that relevant evidence will be more probative than
prejudicial. Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).
3. Analysis
Under the first factor from Knight and Gigliobianco, the State argues that the evidence is
probative of Duvall’s intent and motive to commit the capital murder of Tapia. The State argues
that the evidence tends to establish that, prior to January 16, 2016, Duvall was already distrustful
toward Tapia as a result of the earlier botched narcotics deal. The State further argues—under the
second 403 factor—that it needed the evidence to lend credence to its theory that Duvall committed
the offense because he believed Tapia to be distrustful. We agree with the State’s arguments
regarding these two factors. Although, as Duvall points out, Taylor testified that Duvall did not
necessarily blame Tapia for the earlier botched deal, he also testified that the group was upset with
Tapia for setting up the deal. We determine that the evidence of the earlier botched deal shows
why the group immediately suspected Tapia of being involved in the theft of the pills from Hall’s
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truck on January 16. Without the evidence, it would be reasonable for a juror to wonder why the
group jumped to that conclusion so quickly, and why Duvall and Hall decided to punish Tapia so
severely. In short, we agree with the State that this evidence was significantly probative of Duvall’s
motive and intent and that it provided a necessary link between the missing pills on January 16,
the group’s assumption that Tapia was behind the theft, and the drastic response taken by Duvall.
Moving to the third factor—any tendency of the evidence to suggest a decision on an
improper basis—Duvall argues that the only way the evidence could be taken is as “a sensational
story” meant to paint Duvall as a dangerous and violent drug dealer. We disagree. First, as we have
already stated, this evidence tends to show a possible motive for Duvall’s culpability in committing
the charged offense either directly or as a party. Second, we cannot say that Taylor’s testimony
regarding the earlier, botched narcotics deal was particularly inflammatory; there was already
significant evidence that Duvall had at least five people working for him selling drugs. Third, the
trial court only narrowly permitted testimony about the botched deal portion of the transaction
while excluding testimony about the aftermath which described that Duvall had lured the offending
buyers to a location and attacked them with a crowbar.
We also cannot say—under the fourth factor—that this evidence had any tendency to
confuse or distract the jury from the main issues of the case. In fact, we determine it helped answer
what would have otherwise been a burning question, that is, why Duvall immediately suspected
Tapia’s involvement with the missing pills on January 16, and why he so quickly decided it
necessary to commit capital murder of Tapia.
Duvall makes no argument advancing his position under the fifth factor, whether the
evidence had any tendency to be given undue weight by a jury that was not equipped to evaluate
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the probative force of the evidence. We determine that this evidence did not have any such
tendency.
Finally, under the sixth and final factor, Taylor’s testimony regarding this incident—in
front of the jury and under the State’s questioning—spanned just three pages of the reporter’s
record, out of over 700 pages recorded in four volumes. We determine that the testimony did not
consume an inordinate amount of time. Even from the trial court’s perspective at the time the
decision to admit the testimony was made, it was obvious that the testimony would not consume
an inordinate amount of time because the court heard the testimony first outside the presence of
the jury—and disallowed a portion of that testimony.
Given the deferential standard of review regarding the admission of evidence, the
presumption in favor of admitting relevant evidence, and the weighing and balancing of the six
factors from Knight and Gigliobianco, we cannot say the trial court’s decision to admit Taylor’s
testimony regarding the botched narcotics deal fell outside the zone of reasonable disagreement,
and therefore, constituted an abuse of discretion. See Montgomery, 810 S.W.2d at 392.
Duvall’s second issue on appeal is overruled.
IV. CONCLUSION
We affirm the trial court’s judgment.
GINA M. PALAFOX, Justice
September 29, 2021
Before Rodriguez, C.J., Palafox, and Alley, JJ.
(Do Not Publish)
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