COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-15-00441-CR
ADRIAN QUIGLEY APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 16TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. F15-1130-16
MEMORANDUM OPINION1
In six issues, Appellant Adrian Quigley appeals from his conviction for
capital murder and resulting life sentence. We affirm.
I. BACKGROUND
In April 2015, Richard Myles resided in a small second-floor apartment in
the Hampton Bay apartment complex in Lewisville with his fiancée, Katina
1 See Tex. R. App. P. 47.4. Washington, and their twenty-three-month-old son. The two hoped to marry
around Easter the following year, and in order to save money for their wedding,
Washington carried two jobs, working approximately forty hours a week at Bank
of America and an additional twenty-five hours a week at David’s Bridal. Myles
had not held a job since January 2015, and whenever Washington was at work,
he would look after their son. Although unemployed, Myles found a way to make
money—by selling marijuana. He was known to keep a supply of marijuana
inside a green bag that he always kept with him, as well as a safe in the
apartment’s kitchen, in which he stored money.
On the morning of April 7, 2015, Washington went to work at Bank of
America. She returned to her apartment in the early afternoon, and at
approximately 5:45 p.m., she said goodbye to Myles and left for an evening shift
at David’s Bridal. A few minutes after her shift ended at 9:00 p.m., Washington
checked her cell phone and saw that she had some missed calls and messages
from one of her upstairs neighbors, but she did not have an opportunity to listen
to her messages before leaving David’s Bridal to head back to her apartment.
When she arrived at the Hampton Bay apartment complex, Washington saw
numerous police cars and officers. She called a neighbor, who handed the
telephone to an officer at the scene, and he directed her to return home and ask
to speak with him. Washington returned home as instructed, and the officer
informed her that Myles had been shot and killed inside their apartment earlier
that evening.
2 The shooting had occurred sometime around 7:00 p.m., and several
individuals in the area surrounding Myles’s apartment heard it take place. One
such individual was Robert Turnbow, who lived in the apartment above Myles’s.
A little after 7:00 p.m., Turnbow was at his apartment with his girlfriend when he
heard a loud bang. While Turnbow’s girlfriend thought the noise could have been
a gunshot, Turnbow initially believed that somebody had kicked in the door of
another apartment. He went out to his patio and saw a stocky black male of
average height running away from his apartment building toward a parking lot.
Turnbow noticed that this individual appeared to be injured in his midsection, that
he was holding his hands to his stomach, and that he was holding a bag or jacket
in his arms. While still on his patio, Turnbow used his cell phone to dial 911 and
reported that his downstairs neighbor’s apartment had been broken into.
Myles’s downstairs neighbor, Judy Trojacek, was also in her apartment
around 7:00 p.m. when she heard two loud thumps coming from the floor
immediately above her. She opened her front door to see what was happening
and saw a black male run down the stairs toward a parking lot. This individual
appeared to be carrying a box or backpack, and bags of marijuana fell to the
ground as he fled, though he did not appear to be injured. A few moments later,
Trojacek saw another black male run down the stairs and head in the same
direction as the first individual. This second individual appeared to be injured,
and as he ran, he was picking up the marijuana that the first individual had
dropped. Trojacek dialed 911 and reported that there had been a shooting in the
3 apartment above her. While she was on the phone with the 911 operator,
officers from the Lewisville Police Department arrived on scene and entered
Myles’s apartment. They discovered Myles’s lifeless body in the living room, and
they also discovered Myles and Washington’s young child in the back bedroom,
seemingly in shock, yet ultimately uninjured.
The investigation of Myles’s murder commenced. Inside the apartment,
investigators discovered that Myles had a bag of marijuana in his hand and that
he had been shot multiple times. They discovered four spent .45-caliber shell
casings near his body and in the kitchen. They recovered two .45-caliber bullets
in the apartment and two from Myles’s body. They found Quigley’s blood on the
refrigerator and on the back of the apartment’s front door. They found Myles’s
safe open and empty, and aside from the money missing from Myles’s safe, the
only other item missing from the apartment was Myles’s green marijuana-filled
bag.
Outside the apartment, a canine unit arrived. After being informed that two
suspects had run down the stairs after exiting Myles’s second-floor apartment,
the canine officers directed their dogs to the bottom of the stairs, where they
alerted to a scent and tracked it to the same parking lot that the two suspects had
fled toward, at which point the dogs lost the scent. In that parking lot, officers
discovered Quigley’s blood. And when investigators retraced the route that the
dogs had tracked from the bottom of the stairs to the parking lot, they discovered
a box of .45-caliber ammunition on the ground, which was missing eight bullets.
4 Investigators interviewed witnesses, who corroborated several of the
details Turnbow and Trojacek had provided in their 911 calls and provided some
additional ones. The witnesses stated that the two suspects who had fled from
Myles’s apartment after the shooting ran toward a parking lot. One of the men
was running ahead of the other by approximately ten to fifteen seconds, and the
second individual was injured and had a bloodstain on his shirt. The two
suspects got into a dark-colored car, which was backed into a parking spot, and
drove away. A witness provided investigators with the license plate number of
the vehicle. Witnesses also informed investigators that Quigley was the injured
suspect who had fled from Myles’s apartment after the shooting.
The next day, Quigley walked into the Lewisville police station to speak
with investigators. His hand was wrapped in a cloth, blood was accumulating on
the cloth, and his side was bandaged. Because of his injuries, Quigley was
transported by ambulance to the hospital, accompanied by a detective. During
the ambulance ride, Quigley told the detective a brief version of what had
happened the day before. Quigley said that he had gone to Myles’s apartment
with an individual named Demico Stanley to sell Myles a quarter-pound of
marijuana; that Stanley “just started shooting” and shot him; that he fled to the
“country” after Stanley shot him;2 and that he had come back to tell his side of the
story.
The evidence reflects that by “country,” Quigley meant the “Mexia, 2
Groesbeck, Waco” area.
5 After Quigley was treated and discharged, he returned to the police station,
where investigators conducted an interview with him about the shooting inside
Myles’s apartment. Quigley stated that he and Myles were in the kitchen and
Stanley was in the living room. When Myles leaned down to open his safe and
pull out his money, Stanley pulled out a gun and pointed it at him and Myles.
Quigley said he raised his hands, and Stanley shot him. Then, Myles charged at
Stanley, and Stanley fired multiple times at Myles in the living room. Quigley
stated that he grabbed Myles’s green bag—which he claimed belonged to him—
and ran out the front door, leaving Myles and Stanley in the apartment. Quigley
claimed that he ran to a neighboring apartment complex, saw a friend who was
outside, and told the friend to give him a ride to the country.
Having learned of Stanley’s involvement in the shooting, investigators
discovered that he had fled to Louisiana. When they picked him up to bring him
back to Texas, Stanley decided to talk. He stated that he and Quigley went to
Myles’s apartment to sell him marijuana, and that while he was in the apartment,
Myles grabbed him on the shoulder. Believing that Quigley and Myles were
trying to set him up, Stanley pulled a gun out of his bag and accidentally fired one
shot, which struck Quigley. Myles grabbed Quigley, pushed him toward Stanley,
and then rushed at Stanley. Stanley started shooting and then fled. As he did
so, a box of ammunition fell out of his bag. Stanley further stated that he and
Quigley both fled to the vehicle they had driven to the apartment complex, got in,
and drove to Stanley’s apartment. Stanley stated that while he was driving the
6 getaway vehicle, he pulled his gun on Quigley because he thought he was being
set up. Once they arrived at Stanley’s apartment, Stanley stated that he got out
of the car and never saw Quigley again.
Using the license plate number witnesses provided, investigators learned
that the vehicle in which Quigley and Stanley had fled the scene was a blue
Chevy Cruze owned by Enterprise Rental. They learned that Stanley had asked
a friend to rent that vehicle, that he provided her with the money to rent it, and
that he told her that he intended to use the vehicle to sell marijuana. They
located the vehicle and discovered Quigley’s blood on the front passenger seat
and the gear shift.
Based upon what they had otherwise learned during the course of the
investigation, investigators concluded that Quigley had lied during his first
interview. At a second interview, Quigley admitted that he had lied about the
green bag belonging to him, about running out of Myles’s apartment first, about
running to the neighboring apartment complex after the shooting, and about
hitching a ride from a friend. He stated that he had actually grabbed Myles’s
money and green marijuana bag and followed Stanley out of the apartment. For
the first time, Quigley claimed that Stanley had forced him to grab Myles’s money
and green marijuana bag, that he got into the Chevy Cruze with Stanley, and that
as they drove to Stanley’s apartment, Stanley was threatening him with the gun
and asking him why he had set him up. Quigley admitted that at the time he and
Stanley went to Myles’s apartment, he knew that Stanley had been previously
7 charged with murder and that Stanley associated with individuals who had been
charged with murder or who were currently in jail for murder charges.
After Quigley’s second interview with investigators, an inmate named
William Mark Hill reached out to investigators to discuss a case that was
unrelated to Myles’s murder. They met with Hill to discuss that unrelated case,
and during the interview, Hill provided some information pertinent to the
investigation of Myles’s murder. Prosecutors followed up with Hill, who told them
that Quigley was a good friend of his that he had known for five or six years, and
that he had met Myles for the first time the day before he was killed. He stated
that on the night before Myles’s murder, he drove to pick up Quigley and that
they both went to Myles’s apartment. Hill stated that his understanding was that
Myles wanted to buy a pound of marijuana for $3,000, and that he and Quigley
were going to Myles’s apartment in order to show Myles a sample of two different
kinds of marijuana so that Myles could choose which kind he wanted to
purchase. Hill stated that as they drove to Myles’s apartment, however, Quigley
related his plan to rob Myles and said that he wanted Hill to help him.
Specifically, Quigley told Hill that Myles had a gun, so Quigley told Hill that once
they got into Myles’s apartment, he wanted Hill to immediately knock Myles out
by punching him in the jaw, thereby incapacitating him. Hill, however, did not
want to rob Myles, so once he and Quigley arrived at Myles’s apartment, Hill
proceeded to show him two samples of marijuana, Myles chose which kind he
wanted, and then Hill and Quigley left. Hill stated that while they were driving
8 away, Quigley was upset with him for not following through with his plan because
Quigley’s sole intent that day was to rob Myles.
A grand jury indicted Quigley for the offense of capital murder. See Tex.
Penal Code Ann. § 19.03(a)(2) (West Supp. 2016). The jury was charged on the
offense of capital murder, as well as the lesser-included offenses of murder and
robbery. The jury found Quigley guilty of capital murder, and the trial court
imposed the statutorily mandated sentence of life imprisonment without parole.
Id. §§ 12.31(a)(2) (setting punishment at life without parole for a capital felony in
cases where State does not seek death penalty and defendant was eighteen
years of age or older when he committed the capital felony), 19.03(b) (West
Supp. 2016) (providing that offense of capital murder is a capital felony).
II. SUFFICIENCY OF THE EVIDENCE
In his first and sixth issues, Quigley argues that the evidence is legally and
factually insufficient to support his conviction for capital murder or any lesser-
included offense. We begin with a brief clarifying discussion of the standard of
review for a sufficiency challenge in light of Quigley’s sixth issue—his factual-
sufficiency challenge.
A. FACTUAL SUFFICIENCY
In Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996), overruled by
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010), the court of
criminal appeals adopted a factual sufficiency standard of review, which allowed
an appellate court to set aside a jury’s verdict if, after viewing the evidence in a
9 neutral light, the verdict was “so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust[.]” Brooks, 323 S.W.3d at 899 n.12
(quoting Clewis, 922 S.W.2d at 129). In 2010, however, the court of criminal
appeals overruled Clewis and held that the standard of review for sufficiency
challenges set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
2789 (1979), “is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt.”
Brooks, 323 S.W.3d at 912.
Quigley candidly acknowledges the court of criminal appeals’ holding in
Brooks, and he did not initially make a factual-sufficiency challenge in his brief.
However, after he filed his brief, Quigley requested leave to supplement in order
to raise a factual-sufficiency challenge because the court of criminal appeals had
recently granted review in two companion cases in which the petitioner asked the
court of criminal appeals to reconsider its abrogation of a factual-sufficiency
review in Brooks. See Walker v. State, Nos. PD-1429-14, PD-1430-14, 2016 WL
6092523, at *1 (Tex. Crim. App. Oct. 19, 2016) (not designated for publication).
Quigley thus sought leave to raise factual sufficiency in the event that the court of
criminal appeals reinstated it. We granted Quigley leave to raise his factual-
sufficiency issue. The court of criminal appeals has since decided Walker, and it
did not overrule Brooks. See id. at *2 n.1 (declining to consider whether to
overrule Brooks); see also Garcia v. State, No. 06-15-00187-CR, 2016 WL
10 6638863, at *1, n.1 (Tex. App.—Texarkana Nov. 10, 2016, no pet.) (mem. op.,
not designated for publication) (noting that in deciding Walker, the court of
criminal appeals did not overrule Brooks). Thus, the Jackson standard remains
“the only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State
is required to prove beyond a reasonable doubt.” Brooks, 323 S.W.3d at 912.
Consequently, we overrule Quigley’s sixth issue.
B. LEGAL SUFFICIENCY
We turn now to Quigley’s first issue—his legal-sufficiency challenge—and
begin by setting forth the appropriate standard of review. In our due-process
review of the sufficiency of the evidence to support a conviction, we view all of
the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. This standard
gives full play to the responsibility of the trier of fact to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Murray v.
State, 457 S.W.3d 446, 448 (Tex. Crim. App.), cert. denied, 136 S. Ct. 198
(2015).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs v.
State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). Thus, when performing an
11 evidentiary sufficiency review, we may not re-evaluate the weight and credibility
of the evidence and substitute our judgment for that of the factfinder. See
Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we
determine whether the necessary inferences are reasonable based upon the
cumulative force of the evidence when viewed in the light most favorable to the
verdict. Murray, 457 S.W.3d at 448. We must presume that the factfinder
resolved any conflicting inferences in favor of the verdict and defer to that
resolution. Id. at 448–49.
1. The Law of Capital Murder
As applicable to this case, a person commits the offense of capital murder
if he intentionally causes the death of an individual in the course of committing or
attempting to commit robbery. Tex. Penal Code Ann. § 19.03(a)(2). A person
commits robbery if, in the course of committing theft and with intent to obtain or
maintain control of the property he (1) intentionally, knowingly, or recklessly
causes bodily injury to another or (2) intentionally or knowingly threatens or
places another in fear of imminent bodily injury or death. Id. § 29.02(a) (West
2011). And a person commits theft if he unlawfully appropriates property with
intent to deprive the owner of property. Id. § 31.03(a) (West Supp. 2016).
The evidence shows that Myles died from gunshot wounds to the chest
and abdomen, and it is undisputed that Stanley, not Quigley, was the person who
shot Myles. Nevertheless, the law of parties provides that Quigley could be
found guilty of capital murder if Stanley committed a capital murder and Quigley
12 was criminally responsible for Stanley’s conduct. See Tex. Penal Code Ann.
§ 7.01(a) (West 2011) (providing that “[a] person is criminally responsible as a
party to an offense if the offense is committed . . . by the conduct of another for
which he is criminally responsible . . . .”).
Here, the jury was instructed that it could find Quigley criminally
responsible for Stanley’s conduct under two theories. First, under Texas Penal
Code section 7.02(a)(2), Quigley could be found criminally responsible for a
capital murder committed by Stanley if, acting with intent to promote or assist the
commission of the capital murder, Quigley solicited, encouraged, directed, aided,
or attempted to aid Stanley in committing that offense. See Tex. Penal Code
Ann. § 7.02(a)(2) (West 2011). Second, under Texas Penal Code section
7.02(b), Quigley could be found criminally responsible for a capital murder
committed by Stanley if Quigley and Stanley had a conspiracy to commit robbery,
and in the attempt to carry out that robbery, Stanley committed the capital murder
in furtherance of the robbery, and the capital murder should have been
anticipated as a result of carrying out the conspiracy. See id. § 7.02(b) (West
2011). The jury was instructed that “‘[c]onspiracy’ means an agreement between
two or more persons, with intent that a felony be committed, that they, or one or
more of them, engage in conduct that would constitute the offense” and also that
the existence of an agreement constituting a conspiracy may be inferred from the
acts of the parties. See Tex. Penal Code Ann. § 15.02(a), (b) (West 2011).
13 The jury, having been instructed on both of these theories, returned a
general verdict finding Quigley guilty of capital murder. We will not disturb that
verdict if the evidence is sufficient to support it under either theory. See Rabbani
v. State, 847 S.W.2d 555, 558 (Tex. Crim. App. 1992) (“The principle is well-
established that when the jury returns a general verdict and the evidence is
sufficient to support a guilty finding under any of the allegations submitted, the
verdict will be upheld.”).
2. The Evidence Is Sufficient
We turn now to the evidence in this case, which we review in the light most
favorable to the jury’s verdict. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
Hill testified that the night before Myles’s murder, he drove Quigley to Myles’s
apartment under the impression that Myles wanted to buy a pound of marijuana
for $3,000, and that he and Quigley were driving to Myles’ apartment that night in
order to show Myles a sample of two different kinds of marijuana that he could
choose from. Hill testified that as they were driving, Quigley stated that his plan
was to rob Myles and asked him to assist in that effort by knocking Myles out
once they arrived at his apartment because he had a gun. Quigley explained
that once Myles was knocked out, he would then “take whatever [Myles] had.”
Hill further testified that when he did not help Quigley rob Myles, Quigley became
upset with him.
The evidence shows that the very next day, Quigley showed up with
Stanley at Myles’s apartment, and according to Quigley’s own statement to
14 investigators, when Myles bent down to grab his money out of his safe, Stanley
pulled a gun out of his bag, pointed it in their direction, and said, “Hey, check this
out.” In addition, both Quigley and Stanley told investigators that Stanley then
fired his gun at Myles, and Dr. Richard Fries, a Tarrant County medical examiner,
concluded that Myles’s death was caused by gunshot wounds to his chest and
abdomen. Quigley also told investigators that after the shooting, he took what
Myles had by grabbing Myles’s money and green marijuana bag and followed
Stanley out of the apartment to the getaway car. Further, Anthony Bryant, a
witness who observed Stanley and Quigley running from Myles’s apartment after
the shooting, testified that when Stanley and Quigley were running toward their
getaway car, Quigley trailed Stanley by ten to fifteen seconds. Finally, Lewisville
Police Department Detective Scott Kelly testified that Quigley told him that before
he and Stanley went to Myles’s apartment on April 7, 2015, he was aware that
Stanley had previously been charged with murder and that Stanley associated
with other individuals who either had been previously charged with murder or
were in jail for murder charges.
With respect to the State’s section 7.02(b) theory of party responsibility,
Quigley primarily attacks the sufficiency of the evidence on two grounds. First,
he argues that the evidence is insufficient to show that he and Stanley had a
conspiracy to rob Myles. However, we conclude that a rational jury could have
inferred from the evidence that when Hill refused to assist Quigley with his plan
15 to rob Myles on April 6, 2015, Quigley successfully enlisted Stanley’s assistance
to accomplish the same end the very next day.
Second, Quigley argues that the evidence is insufficient to show that he
should have anticipated that a capital murder could occur as a result of carrying
out the conspiracy. He contends, and the State concedes, that the facts of this
case are similar to the facts in Tippitt v. State, 41 S.W.3d 316 (Tex. App.—Fort
Worth 2001, no pet.), abrogated on other grounds by Hooper v. State,
214 S.W.3d 9 (Tex. Crim. App. 2007). As in this case, the jury in Tippitt was
instructed that it could find the defendant, Preston Tippitt, guilty of capital murder
as a party under either section 7.02(a)(2) or section 7.02(b) of the penal code,
and the jury returned a verdict finding him guilty of capital murder. See id. at
323. The evidence showed that Tippitt formulated a plan with Robert Whitaker, a
person whose reputation suggested might be prone to commit violence, to rob a
drug dealer at his house. Id. at 319–20, 325. The two showed up at the drug
dealer’s house, and Whitaker and the drug dealer began transacting business in
the kitchen. Id. at 320. Then, Whitaker shot the drug dealer, who died as a
result. Id. Once the shooting started, Tippitt fled. Id. We concluded that the
evidence was insufficient to find Tippitt guilty of capital murder as a co-
conspirator under section 7.02(b) because it failed to show that he should have
anticipated that a murder could result from carrying out the robbery. Id. at 324–
26. Quigley argues that Tippitt compels the same conclusion here.
16 Tippitt, however, is not on point. There, in concluding that the evidence
was insufficient to prove that Tippitt should have anticipated that a murder could
occur as a result of carrying out the robbery, we stated as follows:
While there was some evidence in our record that, by his reputation, Whitaker might be prone to commit violence, there was no evidence to establish [Tippitt’s] knowledge of Whitaker’s violent propensities. Moreover, there is no evidence to show that [Tippitt] knew Whitaker had a gun when he entered [the drug dealer’s] home. Without such evidence, we cannot hold that the evidence showed, beyond a reasonable doubt, that [Tippitt] should have anticipated intentional murder as a possible result of their agreement to rob [the drug dealer].
Id. at 325–26. Here, however, there is evidence in the record showing not only
that Stanley had a reputation suggesting that he might be prone to commit
violence but also that Quigley knew of Stanley’s violent propensities prior to
Myles’s murder. Specifically, Detective Kelly testified that Quigley told him that
before Myles’s murder, he knew that Stanley had been charged with murder and
that Stanley associated with others who either had been charged with murder or
were currently in jail for murder charges. In addition, Hill testified that when
Quigley asked him to knock Myles out the day before Myles was killed, it was
because Quigley knew that Myles had a gun. Thus, unlike in Tippitt, we
conclude that there is evidence from which a rational jury could have concluded
that Quigley should have anticipated that a capital murder could have occurred
as a result of carrying out the conspiracy to rob Myles.
In sum, viewing all of the evidence in the light most favorable to the jury’s
verdict, we conclude that the jury could have reasonably concluded that
17 (1) Quigley sought to enter into a conspiracy with Hill to rob Myles on April 6,
2015, and when Hill refused to go along with the plan, Quigley then successfully
entered into a conspiracy with Stanley to help him rob Myles the following day;
(2) in the attempt to carry out that robbery, Stanley shot and killed Myles;
(3) Stanley shot and killed Myles in furtherance of the robbery; and (4) Quigley
should have anticipated that Myles’s murder could have resulted from carrying
out the conspiracy to rob him. See Tex. Penal Code Ann. § 7.02(b). Thus, we
hold that the evidence is sufficient to support the jury’s verdict finding Quigley
guilty of capital murder as a co-conspirator under section 7.02(b). See id. We
therefore overrule Quigley’s sixth issue.
C. QUIGLEY’S AFFIRMATIVE DEFENSE OF DURESS
In his fifth issue, Quigley raises a factual sufficiency challenge to the jury’s
implied finding rejecting his affirmative defense of duress. Duress is an
affirmative defense to prosecution. Tex. Penal Code Ann. § 8.05(a)–(b) (West
2011); see Williams v. State, 911 S.W.2d 191, 195 (Tex. App.—Houston [1st
Dist.] 1995, pet. ref’d). As applicable to this case, “[i]t is an affirmative defense to
prosecution that the actor engaged in the proscribed conduct because he was
compelled to do so by threat of imminent death or serious bodily injury to himself
or another.” Tex. Penal Code Ann. § 8.05(a).
Having already concluded that the evidence is sufficient to support the
jury’s verdict finding Quigley guilty of the capital murder of Myles committed by
Stanley under the conspiracy theory of the law of parties, we frame our analysis
18 of Quigley’s duress defense with that holding in mind. See Tex. Penal Code
Ann. § 7.02(b). The focus of a duress defense is on the “proscribed conduct”
that a defendant engaged in. See Tex. Penal Code Ann. § 8.05(a). Here, in
arguing that the evidence is factually insufficient to support the jury’s implied
rejection of his duress defense, the proscribed conduct that Quigley specifically
focuses on is committing or attempting to commit robbery. He argues that the
evidence showed that everything he did after Stanley shot Myles—including
taking Myles’s money and marijuana and fleeing the apartment—he did under
threat of being shot by Stanley, and for this reason, the jury’s implicit rejection of
his duress defense was so against the great weight and preponderance of the
evidence as to be manifestly unjust. See Butcher v. State, 454 S.W.3d 13, 20
(Tex. Crim. App. 2015).
Under the conspiracy theory of the law of parties, the State had to prove
that (1) Quigley entered into a conspiracy with Stanley to rob Myles, (2) Stanley
committed capital murder, (3) Stanley committed the capital murder in
furtherance of the conspiracy to rob Myles, and (4) Quigley should have
anticipated that capital murder could occur as a result of the robbery. See Tex.
Penal Code Ann. § 7.02(b); Canfield v. State, 429 S.W.3d 54, 66 (Tex. App.—
Houston [1st Dist.] 2014, pet. ref’d). As detailed above, based upon the evidence
presented, the jury could have reasonably believed that Quigley entered into a
conspiracy with Stanley to rob Myles, and that he should have anticipated that a
capital murder could occur as a result of carrying out that conspiracy. We
19 therefore conclude that the jury’s implied finding rejecting Quigley’s duress
defense was not so against the great weight and preponderance of the evidence
as to be manifestly unjust. See Butcher, 454 S.W.3d at 20. We overrule
Quigley’s fifth issue.
III. MOTION FOR MISTRIAL
In his second issue, Quigley argues that the trial court reversibly erred by
denying his motion for mistrial. During trial, the State called Lewisville Police
Department Detective Shawn Dority, and during his direct examination, it moved
to admit Exhibit 67, which included a video of an interview that Detective Dority
conducted with Quigley after he had been released from the hospital. The
record shows that defense counsel responded, “No objection, Judge. And for the
record, I’ve been provided this [exhibit] well in advance of today.” The trial court
admitted Exhibit 67. When the State later requested to publish a portion of
Exhibit 67 to the jury, the following exchange took place:
[State]: May I publish, Your Honor, a portion of State’s Exhibit 67? I talked to Defense about that, about a number of different things, including that it is two hours long. So we’re only going to publish the first hour, not only for time[‘s] sake, but nothing really happens in the second hour.
So may I publish the first 50 minutes of State’s Exhibit 67?
[Defense Counsel]: Judge, we have discussed this. Again, I’ve had a copy of this for many months prior to today. We do have an agreement as to portions that we will make sure are redacted, and so insofar as we comply with that, then we have no objection.
The Court: Okay.
20 [Defense Counsel]: And [the State] has noted down those times and will be in charge of that. We’ll be okay with that.
The Court: Okay. So the Court will allow you to publish State’s Exhibit 67, the 50 minutes that you’ve identified with the agreed-to redactions.
[State]: Thank you, Your Honor.
[Defense Counsel]: Judge, I guess just for clarity[‘s] sake, we are not objecting to the 50 minutes that are going to be played, including the redactions being admitted into evidence. Anything more than that we would object to the things that we have agreed that are not admissible.
The Court: All right. And I understand your objections.
[State]: That’s fine, Your Honor.
The State then showed the video of Detective Dority’s interview with Quigley to
the jury. After the video finished playing, the State resumed its direct
examination of Detective Dority, which filled an additional twenty pages in the
record before the trial court dismissed the jury for a break.
While the jury was gone, Quigley moved for a mistrial based upon a
statement that Detective Dority had made to Quigley in the video interview that
had been played for the jury. That statement, as related by Quigley’s counsel,
was, “I know you’ve [Quigley] been locked up for robbery; I know you’ve been
down before.” Before opening statements, the trial court had granted Quigley’s
motion in limine, which included a provision prohibiting the State and its
witnesses from “[a]ny mention of or reference to [Quigley’s] prior criminal record”
before first approaching the bench for a ruling on the admissibility of such
21 matters. Quigley argued that because Detective Dority’s statement in the video
violated its limine order, the trial court should order a mistrial. Then the following
exchange took place:
The Court: Okay. And so the record is clear, that was Exhibit 67 that was being played?
[Defense Counsel]: Yes, Judge. 67.
The Court: Okay. And as I recall, it was admitted with stipulations that there were going to be certain portions redacted. Was the part that [Defense Counsel] is referring to the part that was agreed to be redacted?
[Defense Counsel]: It was not, Your Honor.
The Court: Okay. So I would then, obviously a motion in limine does not preserve a later objection. I’m going [to] say that that objection was waived because the exhibit had been reviewed previously by Defense, and there was no objection made to that portion of the video before it was played to the jury. So I will overrule the Defense motion for mistrial.
Quigley contends that the trial court abused its discretion by overruling his motion
for mistrial.
We first consider the State’s argument that Quigley failed to preserve this
issue for our review. Generally, a party must preserve an issue in the trial court
in order to raise it on appeal, and an appellate court should not address the
merits of an issue that has not been preserved. Tex. R. App. P. 33.1(a); Ford v.
State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009). To preserve an issue for
our review, a party must have presented to the trial court a timely request,
objection, or motion that states the specific grounds for the desired ruling if they
22 are not apparent from the context of the request, objection, or motion. Tex. R.
App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674 (Tex. Crim. App. 2015),
cert. denied, 136 S. Ct. 1461 (2016). Further, the trial court must have ruled on
the request, objection, or motion, either expressly or implicitly, or the complaining
party must have objected to the trial court’s refusal to rule. Tex. R. App. P.
33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim. App. 2013).
The record shows that Quigley affirmatively stated that he had no objection
to the trial court admitting Exhibit 67, which included Detective Dority’s interview
with him. It was not until the State moved to publish the first fifty minutes of that
interview to the jury that Quigley noted that the State had agreed to redact
certain portions of it. However, he had no objection to the State publishing the
un-redacted portions. The record further shows that the particular statement
Quigley claimed violated the limine order was not covered by the redaction
agreement. And the record reflects that Quigley did not object to that statement
at the time it was played to the jury.
Generally, to be timely, an objection must be made as soon as the basis
for the objection becomes apparent. See Tex. R. Evid. 103(a)(1); Tex. R. App.
P. 33.1(a)(1); London v. State, 490 S.W.3d 503, 507 (Tex. Crim. App. 2016);
Reyes v. State, 361 S.W.3d 222, 228–29 (Tex. App.—Fort Worth 2012, pet.
ref’d). With respect to the admission of evidence, this normally occurs at the time
the evidence is admitted. Swilley v. State, 465 S.W.3d 789, 795–96 (Tex. App.—
Fort Worth 2015, no pet.) (citing Dinkins v. State, 894 S.W.2d 330, 355 (Tex.
23 Crim. App.), cert. denied, 516 U.S. 832 (1995)). Quigley did not raise any
objection related to the particular statement forming the basis of his motion for
mistrial until well after it had been admitted into evidence and played for the jury.
Moreover, Quigley’s complaint that the trial court abused its discretion in denying
his motion for mistrial is based on the alleged violation of the trial court’s limine
order. But it is well settled that the granting or denial a motion in limine does not
preserve error. See Fuller v. State, 253 S.W.3d 220, 232 (Tex. Crim. App. 2008);
Swilley, 465 S.W.3d at 795–96 (“Although Appellant complained that the State
had violated his motion in limine, generally the granting or denial of a motion in
limine is a preliminary ruling only and preserves nothing for appellate review.”).
Rather, to preserve error as to the subject of a motion in limine, a party must
object at the time the subject is raised during trial. Fuller, 253 S.W.3d at 232;
Wilson v. State, 44 S.W.3d 602, 606–07 (Tex. App.—Fort Worth 2001, pet. ref’d);
see Doucette v. State, No. 03-10-00176-CR, 2011 WL 832129, at *1–2 (Tex.
App.—Austin Mar. 9, 2011, no pet.) (mem. op., not designated for publication)
(holding that appellant failed to preserve complaint that portions of audio
recording published to jury violated trial court’s order in limine where appellant
failed to object when the audio recording was admitted, failed to object when
State asked to publish it to the jury, and failed to object when the challenged
statements were played). Because Quigley failed to timely object, we conclude
that he failed to preserve his second issue. See Tex. R. Evid. 103(a)(1); Tex. R.
24 App. P. 33.1(a)(1); London, 490 S.W.3d at 507; Swilley, 465 S.W.3d at 795–96;
Reyes, 361 S.W.3d at 228–29. We therefore overrule Quigley’s second issue.
IV. CHARGE ERROR
In his third issue, Quigley argues that the trial court erred by submitting a
charge that authorized the jury to convict him on a theory that was not alleged in
the indictment. The penal code provides three distinct theories under which a
person can be convicted of murder. See Tex. Penal Code Ann. § 19.02(b).
Under section 19.02(b)(1), a person commits murder if he “intentionally or
knowingly causes the death of an individual.” Id. § 19.02(b)(1). Under section
19.02(b)(2), a person commits murder if he “intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes the death of an
individual.” Id. § 19.02(b)(2). And under section 19.02(b)(3), a person commits
murder if he
commits or attempts to commit a felony, other than manslaughter, and in the course of and in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, he commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual.
Id. § 19.02(b)(3). The trial court’s instruction defining murder in the abstract
portion of the charge included all three of these theories.
The jury convicted Quigley of capital murder, and as applicable to this
case, “[a] person commits [capital murder] if the person commits murder as
defined under Section 19.02(b)(1) and the person intentionally commits the
murder in the course of committing or attempting to commit . . . robbery[.]” Id.
25 § 19.03(a)(2) (emphasis added). Quigley argues that because the indictment
alleges that he committed capital murder, which requires a finding that he
committed murder specifically under section 19.02(b)(1), providing an instruction
on the definition of murder in the abstract portion of the charge that included the
definitions of murder under sections 19.01(b)(2) and 19.01(b)(3) was error that
resulted in egregious harm.
Quigley made no objection to the jury charge. Thus, he can prevail on his
jury-charge-error complaint only if (1) the charge was erroneous and (2) he
suffered egregious harm. See Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.
App. 2013); Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012);
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g);
see also Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). We do not decide
whether the murder instruction in the abstract portion of the charge was
erroneous because we conclude that even assuming it was, Quigley was not
egregiously harmed.
The charge contains three application paragraphs related to the offense of
capital murder authorizing the jury to convict Quigley for that offense as a
principal under section 19.03(a)(2), as a party under section 7.02(a)(2), and as a
co-conspirator under section 7.02(b), respectively. Each of these paragraphs
correctly contained the theory of murder set forth in section 19.01(b)(1), and
none of them included the section 19.01(b)(2) or section 19.01(b)(3) theories of
murder. Although the charge also included application paragraphs for the lesser-
26 included offense of murder, each of which included all three theories of murder
contained in section 19.01(b), it specifically instructed the jury to consider those
paragraphs only if (1) it did not believe beyond a reasonable doubt that Quigley
was guilty of capital murder, or (2) it had a reasonable doubt that he was guilty of
capital murder, or (3) it found that he “engaged in the proscribed conduct
because he was compelled to do so by threat of imminent death or serious bodily
injury to himself or another.”
Because the application paragraphs relating to capital murder correctly
instructed the jury on that offense, any error in instructing the jury on all three
theories of murder in the abstract portion of the charge did not result in egregious
harm. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (“Where
the application paragraph correctly instructs the jury, an error in the abstract
instruction is not egregious.”), cert. denied, 529 U.S. 1102 (2000); Bazanes v.
State, 310 S.W.3d 32, 39 (Tex. App.—Fort Worth 2010, pet. ref’d). Similarly,
because the jury convicted Quigley of the greater offense of capital murder, it
had no occasion to consider the lesser-included offense of murder, and
consequently, any error in instructing the jury on all three theories of murder in
the application paragraphs relating to that lesser-included offense was not
egregious. See Clark v. State, 717 S.W.2d 910, 917–18 (Tex. Crim. App. 1986)
(holding that where jury convicted defendant of greater offense, “errors in the
charge on the lesser included offense, for which the appellant was not convicted,
could not so have misled the jury as to constitute fundamental error.” (quoting
27 Thomas v. State, 587 S.W.2d 707, 708–09 (Tex. Crim. App. 1979))); see also
Saunders v. State, 913 S.W.2d 564, 569–70 (Tex. Crim. App. 1995) (recognizing
that Clark court held that “any error in the lesser included offense instruction was
not fundamental in view of the fact that the jury convicted [the appellant] of the
greater offense of capital murder”); Tennison v. State, No. 05-11-01431, 2013
WL 3353329, at *1–2 (Tex. App.—Dallas Jun. 28, 2013, pet. ref’d) (not
designated for publication) (holding that appellant was not egregiously harmed
because “[w]hen the jury convicted appellant of the greater offense of aggravated
assault, the verdict nullified any harm in the lesser included offense portion of the
charge”). We overrule Quigley’s third issue.
V. SPEEDY TRIAL
In his fourth issue, Quigley claims that he was denied his right to a speedy
trial. We analyze a speedy-trial complaint by applying the balancing test
established in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182 (1972). See id. at
530–33, 92 S. Ct. at 2192–93 (setting forth factors to apply in evaluating a
speedy-trial claim under federal Constitution); Zamorano v. State, 84 S.W.3d
643, 647–48 (Tex. Crim. App. 2002) (stating that a speedy-trial claim under
Texas constitution is analyzed under the factors established in Barker). The
Barker test requires us to weigh the strength of each of the following factors and
to balance their relative weight in light of the conduct of the prosecution and the
defendant: (1) the length of the delay, (2) the reason for the delay, (3) the
circumstances surrounding the appellant’s assertion of his speedy-trial right, and
28 (4) the prejudice suffered by the appellant. Zamorano, 84 S.W.3d at 647–48;
Murphy v. State, 280 S.W.3d 445, 450 (Tex. App.—Fort Worth 2009, pet. ref’d).
The court of criminal appeals has made plain that a speedy-trial complaint
is, like most appellate complaints, subject to the rules of error preservation.
Henson v. State, 407 S.W.3d 764, 766, 769 (Tex. Crim. App. 2013), cert. denied,
134 S. Ct. 934 (2014); Denstitt v. State, No. 02-14-00172-CR, 2015 WL
4043285, at *2–3 (Tex. App.—Fort Worth Jul. 2, 2015, no pet.) (mem. op., not
designated for publication); see Tex. R. App. P. 33.1(a). One of the reasons
underlying the rule requiring a speedy-trial complaint to be preserved is that “[a]t
least two of the Barker factors (the reason for delay and the prejudice to the
accused) are fact-specific inquiries and may not be readily apparent from the trial
record,” and therefore requiring an appellant to preserve a speedy-trial complaint
“enables the [trial] court to hold a hearing and develop this record so that the
appellate courts may more accurately assess the claim.” Henson, 407 S.W.3d at
769.
Here, Quigley filed a motion for speedy trial on June 19, 2015, but we have
found nothing in our record showing that he presented it to the trial court, that the
trial court held a hearing on it, or that the trial court made a ruling on it. See Tex.
R. App. P. 33.1(a)(2) (providing that in order to preserve error, a party must
either obtain a ruling on his request, objection, or motion, or if the trial court
refuses to rule, object to the trial court’s refusal to rule); Everitt v. State, 407
S.W.3d 259, 262–63 (Tex. Crim. App. 2013) (“To preserve an issue for appellate
29 review, . . . the trial court must have ruled on the objection either expressly or
implicitly.”) Consequently, the trial court had no opportunity to develop the
evidence pertinent to an analysis under the Barker test. See Henson,
407 S.W.3d at 769; Nguyen v. State, 506 S.W.3d 69, 78 (Tex. App.—Texarkana
2016, pet. filed) (holding speedy-trial complaint not preserved where appellant
filed motion for speedy trial but failed to obtain a ruling on it); see also Grimaldo
v. State, 130 S.W.3d 450, 454 (Tex. App.—Corpus Christi 2004, no pet.) (holding
speedy-trial complaint not preserved when appellant fails to raise it before trial
begins, when he fails to present evidence of the claim to the trial court, or when
he fails to obtain a ruling after presentation of evidence of the claim). We
conclude that Quigley failed to preserve his fourth issue.3 We therefore overrule
Quigley’s fourth issue.
3 Assuming that Quigley did preserve this issue, however, he still would not prevail. In applying the Barker test, we begin with the first factor—the length of delay, which in this case we measure from the time Quigley was arrested until the time his trial commenced. See Gonzales v. State, 435 S.W.3d 801, 809 (Tex. Crim. App. 2014). Unless we conclude this delay is presumptively prejudicial, we need not conduct further analysis of a speedy-trial claim. See Cantu v. State, 253 S.W.3d 273, 281 (Tex. Crim. App. 2008); Schenekl v. State, 996 S.W.2d 305, 312 (Tex. App.—Fort Worth 1999), aff’d, 30 S.W.3d 412 (Tex. Crim. App. 2000). Here, Quigley was arrested on April 8, 2015, and his trial commenced on October 26, 2015, a delay of less than seven months. This delay falls outside of the general rule that a delay exceeding eight months is presumptively prejudicial. See Russell v. State, 90 S.W.3d 865, 872 (Tex. App.—San Antonio 2002, pet. ref’d) (stating that “[g]enerally, a delay of eight months or longer is considered ‘presumptively prejudicial’ and triggers speedy trial analysis”); Schenekl, 996 S.W.2d at 312 (same). We cannot say that the delay in this capital-murder case “crossed the threshold dividing ‘ordinary’ from ‘presumptively prejudicial’ delay[.]” Zamorano, 84 S.W.3d at 649 (citing Doggett v. United States, 505 U.S. 647, 651–52, 112 S. Ct. 2686, 2690–91 (1992)).
30 VI. CONCLUSION
Having overruled all of Quigley’s issues, we affirm the trial court’s
judgment.
/s/ Lee Gabriel
LEE GABRIEL JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: March 9, 2017
Thus, even had Quigley preserved his speedy-trial complaint, he nevertheless would not prevail on his fourth issue.