Modified and Affirmed and Opinion Filed March 18, 2024
In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00163-CR
A SHAHEED ABDULLAH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F22-76156-Q
MEMORANDUM OPINION Before Justices Nowell, Miskel, and Kennedy Opinion by Justice Nowell A jury convicted appellant A. Shadeed Abdullah of robbery and sentenced
him to fifteen years’ confinement. On appeal, he argues the trial court denied his
right to confrontation by admitting a 9-1-1 recording containing inadmissible
hearsay and the evidence contributed to his lengthy sentence. The State raises a
cross-issue seeking several modifications of the judgment. As modified, we affirm. Background
Candie Thomas and appellant dated for approximately five years. The
relationship started “great,” but later shifted such that the two engaged in verbal and
physical altercations. In May 2022, her relationship with appellant was “off and on.”
On May 27, 2022, appellant and his new girlfriend drove to Candie’s
apartment. He left his car and girlfriend at Candie’s apartment while he and Candie
drove Candie’s car to a friend’s wedding in Rockwall. Candie and appellant enjoyed
the wedding and returned to the apartment. A fight ensued when Candie refused to
allow appellant to borrow her car. He began “screaming, and then he swung” his
fists at Candie. He reached into her bra to retrieve her keys, ID, and debit card,
struck her in the head, and pushed her into the bushes near the stairs to her apartment.
As they continued arguing, appellant helped Candie out of the bushes, and
they proceeded up the stairs to her third-floor apartment. While walking up the
stairs, he pulled out a gun1 and shot towards her. She stepped back, and the bullet
hit the wall. She recalled appellant firing the gun twice: once in the air outside the
front door and once in the apartment. To prevent appellant from taking her car,
Candie grabbed a knife from the kitchen, followed appellant out of the apartment,
and slashed both appellant’s tires and the tires on her own car. Appellant and his
girlfriend still drove off in Candie’s car.
1 Candie owned a 9mm firearm. At some point prior to May 27, 2022, appellant came to possess Candie’s firearm and did not return it to her. –2– Kameron Murphy, the nighttime apartment manager and security guard,
testified he heard three or four gunshots while sitting in his truck by the front office.
He drove in the direction of the gunshots and saw a black vehicle speeding off. He
recognized the vehicle as Candie’s car. He also observed shell casings on the ground
where Candie’s car was previously parked. He called 9-1-1, told the dispatcher he
needed police, and gave a brief description of the events. Candie then joined the
call, described the confrontation, and answered the dispatcher’s questions. The call
lasted approximately five and a half minutes.
Officer Sisto Rodriquez responded to the scene and talked to Candie. Based
on Candie’s description of the events, Officer Rodriquez looked for bullet holes and
shell casings. Officers found shell casings in the parking lot but found no casings or
bullet holes inside the apartment.
Appellant returned Candie’s car and other stolen items a few days later. On
July 8, 2022, he was arrested and indicted for aggravated robbery. Following his
arrest, appellant repeatedly called Candie from jail. The jury heard jail phone
recordings between Candie and appellant where he asked her to lie, say his girlfriend
hit her, and sign an affidavit of nonprosecution. Appellant offered to pay her as
much as $15,000 to do so, but she refused.
The jury found appellant guilty of the lesser-included offense of robbery.
After hearing punishment evidence, the jury found true the enhancement paragraph
–3– regarding a prior felony conviction and sentenced appellant to fifteen years’
imprisonment. This appeal followed.
Admission of 9-1-1 Call
In a single issue, appellant challenges the admission of State’s Exhibit 6, the
9-1-1 call, because it was inadmissible hearsay and denied his right to confrontation.
Appellant first argues Candie’s statements during the call do not fall within
the “excited utterance” exception to the hearsay rule. See TEX. R. EVID. 803(2)
(defined as a statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition). The
State contends appellant’s issue is not preserved, or alternatively, the statements fall
within both the “excited utterance” and “present-sense-impression” hearsay
exceptions.
Whether a party’s particular complaint is preserved depends on whether the
complaint on appeal comports with the complaint made at trial. Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009). The trial court overruled appellant’s
objection “to the security guard’s voices [sic] on there as hearsay” and the 9-1-1 tape
“as a violation of his right to confrontation.” Appellant’s hearsay objection at trial
pertained to Murphy’s statements, not Candie’s statements. Thus, his complaint on
appeal regarding Candie’s statements on the 9-1-1 tape are not preserved for review.
Id.; see also TEX. R. APP. P. 33.1. Appellant has not challenged or briefed any of
Murphy’s statements on the tape. Although the State, in an abundance of caution,
–4– responds that Murphy’s statements fall within the present-sense-impression hearsay
exception, we need not address the argument because appellant’s brief focused
solely on Candie’s statements. See TEX. R. APP. P. 47.1. We overrule appellant’s
issue to the extent he challenged admission of the 9-1-1 tape based on improperly
admitted hearsay.
We likewise conclude appellant has not adequately preserved his objection to
the violation of his right to confrontation. When evidence is admitted, a part of
which is admissible and a part of which is not, it is incumbent on the party objecting
to the admissibility of the evidence to specifically point out what part is inadmissible
to preserve the alleged error. Wilkinson v. State, 523 S.W.3d 818, 827 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d). “Absent such a showing, appellant is not
entitled to relief.” Robinson v. State, No. 14-19-00934-CR, 2021 WL 388687, at *6
(Tex. App.—Houston [14th Dist.] Feb. 4, 2021, no pet.) (mem. op., not designated
for publication).
Here, the call is approximately five and a half minutes long and contains
statements by Murphy, Candie, and the 9-1-1 operator. Appellant did not identify
which portions of the call violated his right to confrontation. Instead, he objected to
the entire recording in the trial court and has not specifically identified any
statements within the recording that violated his right to confrontation on appeal.
Thus, “[w]hile it might be conceded that appellant’s objection sufficiently stated
grounds for the objection, it did not identify what was objected to.” Hernandez v.
–5– State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980) (op. on reh’g). Accordingly,
we conclude appellant failed to preserve error, if any, in the admissibility of
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Modified and Affirmed and Opinion Filed March 18, 2024
In The Court of Appeals Fifth District of Texas at Dallas No. 05-23-00163-CR
A SHAHEED ABDULLAH, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 204th Judicial District Court Dallas County, Texas Trial Court Cause No. F22-76156-Q
MEMORANDUM OPINION Before Justices Nowell, Miskel, and Kennedy Opinion by Justice Nowell A jury convicted appellant A. Shadeed Abdullah of robbery and sentenced
him to fifteen years’ confinement. On appeal, he argues the trial court denied his
right to confrontation by admitting a 9-1-1 recording containing inadmissible
hearsay and the evidence contributed to his lengthy sentence. The State raises a
cross-issue seeking several modifications of the judgment. As modified, we affirm. Background
Candie Thomas and appellant dated for approximately five years. The
relationship started “great,” but later shifted such that the two engaged in verbal and
physical altercations. In May 2022, her relationship with appellant was “off and on.”
On May 27, 2022, appellant and his new girlfriend drove to Candie’s
apartment. He left his car and girlfriend at Candie’s apartment while he and Candie
drove Candie’s car to a friend’s wedding in Rockwall. Candie and appellant enjoyed
the wedding and returned to the apartment. A fight ensued when Candie refused to
allow appellant to borrow her car. He began “screaming, and then he swung” his
fists at Candie. He reached into her bra to retrieve her keys, ID, and debit card,
struck her in the head, and pushed her into the bushes near the stairs to her apartment.
As they continued arguing, appellant helped Candie out of the bushes, and
they proceeded up the stairs to her third-floor apartment. While walking up the
stairs, he pulled out a gun1 and shot towards her. She stepped back, and the bullet
hit the wall. She recalled appellant firing the gun twice: once in the air outside the
front door and once in the apartment. To prevent appellant from taking her car,
Candie grabbed a knife from the kitchen, followed appellant out of the apartment,
and slashed both appellant’s tires and the tires on her own car. Appellant and his
girlfriend still drove off in Candie’s car.
1 Candie owned a 9mm firearm. At some point prior to May 27, 2022, appellant came to possess Candie’s firearm and did not return it to her. –2– Kameron Murphy, the nighttime apartment manager and security guard,
testified he heard three or four gunshots while sitting in his truck by the front office.
He drove in the direction of the gunshots and saw a black vehicle speeding off. He
recognized the vehicle as Candie’s car. He also observed shell casings on the ground
where Candie’s car was previously parked. He called 9-1-1, told the dispatcher he
needed police, and gave a brief description of the events. Candie then joined the
call, described the confrontation, and answered the dispatcher’s questions. The call
lasted approximately five and a half minutes.
Officer Sisto Rodriquez responded to the scene and talked to Candie. Based
on Candie’s description of the events, Officer Rodriquez looked for bullet holes and
shell casings. Officers found shell casings in the parking lot but found no casings or
bullet holes inside the apartment.
Appellant returned Candie’s car and other stolen items a few days later. On
July 8, 2022, he was arrested and indicted for aggravated robbery. Following his
arrest, appellant repeatedly called Candie from jail. The jury heard jail phone
recordings between Candie and appellant where he asked her to lie, say his girlfriend
hit her, and sign an affidavit of nonprosecution. Appellant offered to pay her as
much as $15,000 to do so, but she refused.
The jury found appellant guilty of the lesser-included offense of robbery.
After hearing punishment evidence, the jury found true the enhancement paragraph
–3– regarding a prior felony conviction and sentenced appellant to fifteen years’
imprisonment. This appeal followed.
Admission of 9-1-1 Call
In a single issue, appellant challenges the admission of State’s Exhibit 6, the
9-1-1 call, because it was inadmissible hearsay and denied his right to confrontation.
Appellant first argues Candie’s statements during the call do not fall within
the “excited utterance” exception to the hearsay rule. See TEX. R. EVID. 803(2)
(defined as a statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition). The
State contends appellant’s issue is not preserved, or alternatively, the statements fall
within both the “excited utterance” and “present-sense-impression” hearsay
exceptions.
Whether a party’s particular complaint is preserved depends on whether the
complaint on appeal comports with the complaint made at trial. Pena v. State, 285
S.W.3d 459, 464 (Tex. Crim. App. 2009). The trial court overruled appellant’s
objection “to the security guard’s voices [sic] on there as hearsay” and the 9-1-1 tape
“as a violation of his right to confrontation.” Appellant’s hearsay objection at trial
pertained to Murphy’s statements, not Candie’s statements. Thus, his complaint on
appeal regarding Candie’s statements on the 9-1-1 tape are not preserved for review.
Id.; see also TEX. R. APP. P. 33.1. Appellant has not challenged or briefed any of
Murphy’s statements on the tape. Although the State, in an abundance of caution,
–4– responds that Murphy’s statements fall within the present-sense-impression hearsay
exception, we need not address the argument because appellant’s brief focused
solely on Candie’s statements. See TEX. R. APP. P. 47.1. We overrule appellant’s
issue to the extent he challenged admission of the 9-1-1 tape based on improperly
admitted hearsay.
We likewise conclude appellant has not adequately preserved his objection to
the violation of his right to confrontation. When evidence is admitted, a part of
which is admissible and a part of which is not, it is incumbent on the party objecting
to the admissibility of the evidence to specifically point out what part is inadmissible
to preserve the alleged error. Wilkinson v. State, 523 S.W.3d 818, 827 (Tex. App.—
Houston [14th Dist.] 2017, pet. ref’d). “Absent such a showing, appellant is not
entitled to relief.” Robinson v. State, No. 14-19-00934-CR, 2021 WL 388687, at *6
(Tex. App.—Houston [14th Dist.] Feb. 4, 2021, no pet.) (mem. op., not designated
for publication).
Here, the call is approximately five and a half minutes long and contains
statements by Murphy, Candie, and the 9-1-1 operator. Appellant did not identify
which portions of the call violated his right to confrontation. Instead, he objected to
the entire recording in the trial court and has not specifically identified any
statements within the recording that violated his right to confrontation on appeal.
Thus, “[w]hile it might be conceded that appellant’s objection sufficiently stated
grounds for the objection, it did not identify what was objected to.” Hernandez v.
–5– State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980) (op. on reh’g). Accordingly,
we conclude appellant failed to preserve error, if any, in the admissibility of
statements violating his right to confrontation contained within the recording. See,
e.g., Mason v. State, No. 03-18-00359-CR, 2019 WL 4065268, at *5 (Tex. App.—
Austin Aug. 29, 2019, no pet.) (mem. op., not designated for publication)
(concluding defendant failed to preserve Confrontation Clause objection at trial by
not identifying the inadmissible statements on the eight-minute long 9-1-1
recording); see also Matter of A.R.G., 612 S.W.3d 691, 694 (Tex. App.—Texarkana
2020, pet. denied) (concluding global objections insufficient to make court aware of
which statements defendant believed violated Confrontation Clause); Sanchez v.
State, No. 05-14-00908-CR, 2015 WL 2400783, at *3 (Tex. App.—Dallas May 20,
2015, no pet.) (mem. op., not designated for publication) (concluding defendant
failed to preserve error by objecting to entire 9-1-1 recording and not specifically
pointing out to trial court objectionable portion).
Regardless, assuming appellant preserved his argument and the trial court
abused its discretion by admitting the recording, the error does not warrant reversal.
The admission of a testimonial statement in violation of the Confrontation Clause is
subject to a constitutional harm analysis under rule of appellate procedure 44.2(a).2
2 The Confrontation Clause provides that the accused has the right to be confronted with the witnesses against him in a criminal trial. U.S. CONT. amend. VI. The Confrontation Clause bars out-of-court testimonial statements unless the witness is unavailable to testify at trial and the defendant had the opportunity to cross-examine him. Ramjattansingh v. State, 587 S.W.3d 141, 159 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). Generally, a statement
–6– Id.; see TEX. R. APP. P. 44.2(a). In such a harm analysis, “the question for the
reviewing court is not whether the jury verdict was supported by the evidence.
Instead, the question is the likelihood that the constitutional error was actually a
contributing factor in the jury’s deliberations in arriving at that verdict—whether, in
other words, the error adversely affected the integrity of the process leading to the
conviction.” Small v. State, No. 01-22-00425-CR, 2023 WL 4239874, at *7 (Tex.
App.—Houston [1st Dist.] June 29, 2023, no pet.) (mem. op., not designated for
publication) (citing Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007)).
In applying a rule 44.2(a) harm analysis to erroneously admitted hearsay over
a Confrontation Clause objection, the court of criminal appeals has instructed that if
the verdict or punishment would have been the same absent the error, then the error
is harmless. See Clay v. State, 240 S.W.3d 895, 905 (Tex. Crim. App. 2007). In our
review, we must consider the entire record. Id. at 904. This includes (1) the
importance of the hearsay evidence to the State’s case; (2) whether the hearsay
evidence was cumulative of other evidence; (3) the presence or absence of other
evidence corroborating or contradicting the hearsay evidence on material points; and
(4) the overall strength of the State’s case. Id. We must also consider any other
is testimonial “if a reasonable person would have understood that law enforcement officers were conducting a criminal investigation and collecting evidence for the purpose of prosecution.” Id. Statements made during a 911 call whose primary purpose is “to enable police assistance for an ongoing emergency” are not considered testimonial. Small v. State, No. 01-22-00425-CR, 2023 WL 4239874, at *7 (Tex. App.— Houston [1st Dist.] June 29, 2023, no pet.) (mem. op., not designated for publication). –7– factor, as revealed by the record, that may shed light on the probable impact of the
trial court’s error on the minds of average jurors. Id.
According to appellant, whether appellant shot at Candie was “the most hotly
contested issue at trial.” He argues the 9-1-1 recording is the only evidence, aside
from Candie’s testimony, of appellant shooting at Candie; therefore, the 9-1-1 call
bolstered Candie’s claim. He further contends the significance of the evidence at
trial is reflected in the jury’s assessment of a fifteen-year sentence.
A review of the entire record refutes appellant’s claims. Murphy testified he
heard three or four gunshots while sitting in his truck by the front office. He drove
towards the direction of the gunshots and saw a black vehicle speeding off, which
he recognized as Candie’s car. As such, Murphy’s report of gunshots during the 9-
1-1 call, his trial testimony, and the presence of shell casings found in the parking
lot near the location where Candie’s car had been parked all served as evidence that
appellant shot at Candie.
More importantly, the jury ultimately found appellant guilty of the lesser-
included offense of robbery, meaning the jury did not believe appellant used or
exhibited a deadly weapon during the robbery. Thus, the admission of the call did
not affect the integrity of the process leading to appellant’s conviction. Small, 2023
WL 4239874, at *7.
Additionally, the 9-1-1 call did not impact appellant’s fifteen-year sentence.
The State alleged and the jury found true a single enhancement paragraph alleging a
–8– prior felony conviction. Thus, the applicable punishment range was for a first-
degree felony. See TEX. PENAL CODE ANN. § 12.42(b) (enhancing second degree
felony to punishment range for first degree felony). “An individual adjudged guilty
of a felony of the first degree shall be punished by imprisonment . . . for life or for
any term of not more than 99 years or less than five years. . . [and] a fine not to
exceed $10,000.” Id. § 12.32(a), (b).
During closing argument, defense counsel encouraged the jury to “consider
something on the lower end of punishment because I think that’s what this case
deserves” because “[w]hat happened here was a fight in a rocky relationship that
resulted in fitting the fact pattern of the statute of robbery.” The State encouraged
the jury to consider not only this robbery, but also appellant’s separate pending
aggravated assault case involving Candie and his prior felony conviction. The State
suggested starting “at 15 because this is not his first go around,” but the prosecutor
also conceded, “I don’t think you need to go all the way up to the high end.” The
jury’s fifteen-year sentence fell within the lower end of the applicable punishment
range; therefore, the admission of the call was unlikely a contributing factor in the
jury’s deliberations in arriving at the sentence. We overrule appellant’s sole issue.
Judgment Modifications
In a cross-issue, the State asserts the judgment should be modified to reflect
(1) appellant’s plea of not guilty, (2) his plea of not true to the enhancement
paragraph, and (3) the jury’s finding of true to the enhancement paragraph. Where
–9– the record contains the necessary information to do so, the court of appeals has
authority to modify the incorrect judgment. TEX. R. APP. P. 43.2(b); Bigley v. State,
865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (en banc). The record supports the
State’s requested modifications. Accordingly, we sustain the State’s cross-issue and
modify the trial court’s judgment to reflect (1) appellant’s plea of not guilty to the
offense, (2) his plea of not true to the first enhancement paragraph, and (3) the jury’s
finding of true to the first enhancement paragraph. See Navarro v. State, No. 05-22-
00360-CR, 2023 WL 3220924, at *5 (Tex. App.—Dallas May 3, 2023, pet. ref’d)
(mem. op., not designated for publication) (modifying judgment to reflect not guilty
plea); see also Ray v. State, No. 05-22-01091-CR, 2023 WL 7294740, at *1 (Tex.
App.—Dallas Nov. 6, 2023, pet. ref’d) (mem. op., not designated for publication)
(modifying judgment to reflect defendant pleaded “not true” to the enhancement
paragraph).
Conclusion
As modified, we affirm the trial court’s judgment.
230163f.u05 /Erin A. Nowell// Do Not Publish ERIN A. NOWELL TEX. R. APP. P. 47.2(b) JUSTICE
–10– Court of Appeals Fifth District of Texas at Dallas JUDGMENT
A SHAHEED ABDULLAH, On Appeal from the 204th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F22-76156-Q. No. 05-23-00163-CR V. Opinion delivered by Justice Nowell. Justices Miskel and Kennedy THE STATE OF TEXAS, Appellee participating.
Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:
We DELETE “GUILTY” and REPLACE with “NOT GUILTY” under Plea to Offense.
We DELETE “N/A” and REPLACE with “NOT TRUE” under 1st Enhancement Paragraph.
We DELETE “N/A” and REPLACE with “TRUE” under Finding on1st Enhancement Paragraph.
In all other respects, the judgment is AFFIRMED.
Judgment entered this 18th day of March, 2024.
–11–