Opinion issued March 31, 2022
In The
Court of Appeals For The
First District of Texas ———————————— NOS. 01-20-00768-CR 01-20-00769-CR ——————————— BYRON EUGENE COLEMAN, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court Galveston County, Texas Trial Court Case Nos. 18CR0071 & 18CR1738
MEMORANDUM OPINION
Appellant, Byron Eugene Coleman, pleaded guilty to unlawful possession of
a firearm by a felon,1 and, in a companion case, a jury found him guilty of murder
1 See TEX. PENAL CODE § 46.04(a). Trial court cause number 18CR0071 and appeal number 01-20-00768-CR. and found one enhancement paragraph true.2 The trial court assessed his
punishments at 10 years’ confinement and confinement for life, respectively. In four
issues, appellant contends that (1-2) he received ineffective assistance of counsel at
trial; (3) trial counsel had a conflict of interest; and (4) the evidence is legally
insufficient to support the murder conviction. We affirm.
BACKGROUND
On the morning of January 5, 2018, Brandy Rhines was shot and killed in the
kitchen of her own home. She suffered multiple gunshot wounds to the chest and
head. Appellant, who was involved in a relationship with Brandy, was arrested,
charged, and ultimately convicted of her murder.
Appellant’s Relationship with Brandy
Brandy was close friends with Natreena West, who was in a relationship with
Brandy’s brother, Sam. Brandy and her two children, J.R. and A.R., lived near
Natreena and Sam in La Marque, Texas. Brittany Stage-Wilson was Brandy’s next-
door neighbor but she did not know Brandy very well.
Brandy was involved with two men—appellant and Reginald Clark. Brandy
met Reginald in 2009, and they became romantically involved sometime after that.
Reginald got married in 2013, but he and Brandy still spent time together.
2 See TEX. PENAL CODE §§ 19.02(c), 12.42. Trial court cause number 18CR1738 and appeal number 01-20-00769-CR. 2 Brandy was also in a relationship with appellant. Appellant’s mother testified
that the two got together while appellant was separated from his wife, but that
appellant’s relationship with Brandy ended when appellant’s wife moved back in
with him and his mother in 2017.
Appellant testified that he and his wife never broke up; she just moved out of
his home to take care of her mother for a while. He claimed that his relationship with
Brandy was not serious, but he admitted that he was “seeing” or “involved” with her.
According to appellant, he and Brandy decided to “slow down” their relationship but
he admitted that, even up to the time of her death, he and Brandy were
communicating frequently. Brittany, Brandy’s neighbor, saw appellant at Brandy’s
house occasionally, but she did not believe that appellant lived there.
Natreena and Sam both testified that appellant and Brandy were in a
relationship, and it appeared to them that appellant was controlling over Brandy.
Brandy did not act like herself when she was with appellant. Brandy acted nervous,
irritable, and “shut off” when she was with appellant. Both Natreena and Sam
testified that Brandy and appellant had ended their relationship at the time of the
murder.
At a gathering of Brandy’s family at which appellant was not present,
Brandy’s cell phone rang several times and she repeatedly hung up the phone without
answering. Brandy appeared to be afraid.
3 Reginald also testified that he believed that Brandy was afraid of appellant.
Events Before the Murder
Reginald testified that one night in 2017, he went to Brandy’s house to drink
and play cards. After spending the night at Brandy’s home, he went outside to leave
and discovered that his tires had been slashed. Appellant testified that he did not
slash Reginald’s tires, but suggested that Brandy had begun seeing a third man about
this time. No other witness testified about a third boyfriend.
On New Year’s Eve 2018, appellant went to his aunt’s house to celebrate.
While there, appellant and his brother went outside to shoot guns in the air for about
an hour. Appellant’s brother testified that appellant’s gun was a 40-calibre black and
silver gun. According to appellant’s brother, appellant’s gun belonged to appellant’s
wife and appellant did not know much about guns. According to appellant’s brother,
appellant would not even know how to clean a gun.
In contrast, appellant testified that, even though he was a felon and was not
allowed to have a gun, guns were his hobby. He learned to clean guns from watching
YouTube videos, and, in fact, he had cleaned his gun on the same morning that
Brandy was murdered.
Natreena testified that on New Year’s Day 2018, Brandy’s family gathered to
celebrate. Brandy arrived before appellant, and after appellant arrived, Brandy went
outside to talk to her father. While Brandy was outside, appellant got up and walked
4 to the restroom. When he got up, appellant pulled out a gun and placed it on the edge
of the table and said, “This is what I’m working with.” Sam took his shirt and pushed
it toward the center of the table so that it would not fall. When appellant got back
from the restroom, he put the gun back in his pocket and sat down. Sam said the gun
was “silver chrome with a marble, white handle.” Appellant denied that this event
ever happened.
Appellant and Brandy left to meet his family at a nearby club. Sam asked to
go with them, but appellant said that they already had plans. Appellant and Brandy
left, but it did not appear that Brandy wanted to go with him.
On January 2, 2018, Brandy came over to Natreena and Sam’s house and
stayed well into the evening. She returned to their house the next day. She looked
okay and was laughing a lot, until she got a call on her cell phone, looked at it, and
her expression changed, “And it went from instant laughing to sadness.” When her
phone stopped ringing, Brandy left again.
Sam and Natreena last talked to Brandy on January 4, 2018, when they went
to her house to pick up Brandy’s children to spend the night at their house. Natreena
told Brandy that if she did not feel safe alone she should go stay with her sister.
Reginald picked up Brandy on the morning of January 4, 2018, and they first
went to a restaurant for breakfast and then to a hotel. While they were together,
Reginald and Brandy were talking about Brandy renting some property that
5 belonged to Reginald’s father. Reginald said that his relationship with his wife was
not going well and that he would move in with Brandy. Reginald and Brandy then
spent time with Brandy’s sister at a restaurant in Galveston. Reginald took Brandy
to a store to buy cigars and then dropped her at her home at 7:00 or 8:00 p.m.
The Day of the Murder–Appellant’s location between 6 a.m. and 9 a.m.
Between 5:30 and 6:00 a.m. on January 5, 2018, appellant took his mother to
a dialysis treatment center. His location between the hours of 6 and 9 a.m. are
disputed. Appellant claimed that he was at Numbers, a game room, while the State
contended that appellant drove to Brandy’s house and murdered her sometime
during this period.
The State’s Evidence
Between 6:40 and 7:36 a.m., appellant called or texted Brandy 10 times. At
6:38 a.m., shortly before these calls and texts began, cell-phone-data evidence
suggests that appellant was leaving his home. From 6:45 to 7:49 a.m., appellant was
in an area northwest of his home. There was about a 20-minute gap in the
information during which appellant may have made it as far as the Numbers game
room, but the phone could not have remained in the area long because between 8:09
a.m. and 8:24 a.m. the phone moved back toward appellant’s home, remaining near
his home from 8:24 to 8:31 a.m. From 8:33 to 8:34 a.m., appellant’s phone utilized
data from a tower near Brandy’s house. From 8:36 to 8:40, appellant’s phone was
6 somewhat north of the crime scene, before returning to the area near his home at
8:54 a.m.
Brandy last used her phone to call Reginald at 7:44 a.m., when she told him
that she had broken up with appellant.
At around 8:30 a.m., Brandy’s neighbor, Brittany, saw appellant on the side
of the road about a mile from Brandy’s house. He was rushing back and forth to the
back of his vehicle, before getting in it to leave. She saw him driving toward her
neighborhood, but as she turned toward her house, he kept going. After arriving at
home, she opened her windows and was going in and out of the house, but she never
saw anything else.
Police believed Brandy was murdered sometime after her 7:44 a.m. phone call
to Reginald and before the time that Brittany saw appellant on the side of the road
around 8:30 a.m.
Appellant’s version
Appellant testified that he took his mother to dialysis three times a week,
arriving between 5:15 and 5:30 a.m. Appellant testified that, after he dropped his
mother off on January 5, he went home, arriving at “about 7:00 or 6:00.” He said
that he often gambled at game rooms while his mother was at dialysis. He said that
on the morning of January 5, 2018, he needed to be at the Numbers game room
before 7:00 a.m. He testified that he then went to the Numbers game room where he
7 stayed until 7:45, when he left and went directly home. Appellant said that while he
was at Numbers, he received a phone call from his wife to let him know that she was
going to work. He also received a call from Brandy, which he stepped outside to
take. He said that, during that call, Brandy told him that she was going to “take to it
the next level” with Reginald and that he and Brandy did not fight about it.
However, the cell-phone-data evidence does not place appellant near
Numbers when appellant said that these calls were made; the cell-phone-data expert
testified that even though there were gaps in the data during which appellant might
have traveled as far as Numbers, he could not have remained at the game room for
the entire time that he claimed to have been there.
Appellant also testified that, at some point, he had to pull his vehicle over
because his battery cables had come loose and had “killed [his] truck.” This was at
approximately the same location that Brittany Stage, appellant’s neighbor, saw him
in the neighborhood. Appellant denied that he was going to or leaving from Brandy’s
house when Stage saw him at approximately 8:30 a.m.
Appellant testified that he returned to Numbers game room, arriving there at
approximately 8:30 a.m. and staying until he went to the Piggy Bank game room at
approximately 9:00 a.m. Again, cell phone data does not put appellant in the vicinity
of Numbers, but it does confirm that he was near the Piggy Bank game room by 9:00
a.m.
8 The Day of the Murder—Events after the Murder
The police obtained surveillance video confirming that appellant was at the
Piggy Bank game room from 9:00 to 9:16 a.m. The cell-phone-data evidence
corroborates this information. While leaving the Piggy Bank game room,
surveillance video shows appellant wiping a spot over his right eye. Appellant
claimed that he was not injured, but that he merely had a white discharge coming
from his eye related to conjunctivitis.
At 9:31 a.m., cell-phone-data evidence placed appellant back in the vicinity
of his home before showing that he moved near the vicinity of the Davita Dialysis
Center. Video surveillance, and other evidence shows that appellant picked his
mother up from dialysis at 10:00 a.m.. His mother testified that appellant did not
have any injury to his eye when he picked her up, even though the surveillance video
from Piggy Bank game room earlier showed him wiping a spot over his eye as he
left the game room.
From 10:01 to 10:08 a.m., appellant was at the Dollar General Store, where
he bought toilet paper for his mother. Video surveillance and cell-phone-data
evidence corroborate this.
Beginning at 9:31 a.m., cell-phone-data evidence placed appellant in an area
near his home. Appellant testified that, when he went home, he went to his “man
cave” to clean his gun. He then went to his bedroom because he was going to take
9 a shower, when he heard his mother call out to him that she was hungry. Appellant
testified that, as he walked down the hall to get her something to eat, he tripped on
a corner of the carpet, fell, and hit his head on the handle of a pantry door.
Appellant’s mother also testified that she “heard this big old bloom, bloom, bloom,”
and when she went to the hallway to see what caused the noise, she saw appellant
on the floor. Appellant’s mother testified that she told him that the cut was not very
deep and that he needed to put pressure on it. Appellant testified that his mother said
the gash was deep. He put tissues on it to stop the bleeding, which he then flushed,
which is why, he explained, that there was no blood in the house.
Appellant left the house to get band-aids. He claimed that he went to his
brother’s house first, but no one was there. He then decided to go to Natreena and
Sam’s house because he knew that Natreena had some medical experience. When
Natreena answered the door, she was surprised because appellant had never been to
her house without Brandy. Appellant had a fresh gash on his head that appeared to
have been cleaned up because there was no dripping blood. Appellant said that he
came to her house because he did not have money to go to the hospital or a clinic
and that he thought that,because she had medical experience she could help.
Natreena left appellant at the door and went to get Sam. She told Sam about
the gash on appellant’s head and said that something was not right. When she
returned, appellant had come inside her house without being invited to do so. When
10 appellant again asked Natreena to look at his cut, she told him to go to the hospital
and he would receive treatment even without insurance. When Natreena asked how
he cut his head, appellant said he fell at his mother’s house and hit it on a hallway
wall. Natreena then suggested that appellant go to the Dollar Store and get a
butterfly band-aid to cover the cut. While appellant was there, Natreena noticed a
gun in his pocket, but Sam did not see it.
Appellant asked Sam to come with him to the Dollar Store, but Sam declined
because he was not feeling well. When appellant noticed Brandy’s daughter, J.R.,
he said, “Hey, [J.R.], I didn’t know you was here.” Appellant then got in his car and
drove away.
Cell-phone-data evidence and a surveillance video showed that appellant
returned to the Dollar General store between 10:40 and 10:43 a.m., where he
purchased bandages.
The Scene of the Crime
After appellant left their home, Natreena told Sam that she had seen appellant
with a gun and told him to call Brandy. Sam tried to do so, but the call went straight
to voicemail. Sometime after her 7:44 a.m. call to Reginald, Brandy’s phone was
turned off and not connected to a network.
Natreena grabbed her keys and she, her daughter, and J.R. drove to Brandy’s
house. Brandy’s car was in the driveway. Natreena told the girls to stay in the car
11 while she approached the house. She noticed that the front door had been kicked in.
Natreena called out to Brandy but got no response. As she made her way into the
home, Natreena could see Brandy’s feet. Brandy’s body was laying partially in the
dining room and partially in the kitchen. The right side of Brandy’s face had a
gunshot wound, and she also had gunshot wounds to the torso. It appeared that there
had been a struggle. Some chairs were turned over and a broken coffee cup was on
the floor. Photographs of the crime scene show a bloodstain on the kitchen bar.
Natreena could tell that Brandy was dead, so she ran out of the house. J.R.
began asking about her mother and Natreena told her not to go inside. Natreena had
left her phone at home with Sam, so she asked J.R. to go borrow a phone from the
mailman, who was nearby. Natreena used the mailman’s phone to call police.
Natreena told the 9-1-1 operator that appellant had been to her house and that Brandy
was not responsive.
While she was still on the phone with the 9-1-1 operator, Natreena heard tires
squealing. When she turned, she saw that it was appellant. Natreena said that
appellant “jumped the curb” and parked between Natreena’s car and the house.
Appellant testified that he only drove to the murder scene because he saw Natreena
driving nearby when he left the Dollar General Store and he thought he would ask
her to put a bandage on his cut, so he followed her to Brandy’s house.
12 Natreena walked toward appellant, who was asking, “What’s going on?
What’s wrong? What happened.” According to Natreena, the cut on his eyebrow was
not bleeding. Natreena told appellant that the police were on the way and she said,
“I know you did it.” At some point, appellant asked J.R. to come to him and Natreena
told J.R. not to move. The mailman got between J.R. and appellant. With police
sirens approaching, appellant asked where Brandy was and ran in the house. He said
that he saw Brandy’s body and came back out again very quickly. He could not
remember if he touched the bar while he was inside the house.
Natreena saw appellant on his cell phone; he testified that he called his mother.
Appellant told Natreena, “I didn’t do this. I don’t know why you’re trying to blame
me for this.” Natreena responded, “I know you did it. I know you did it.” Appellant
was still on the phone with his mother, and he told her that the police thought he had
something to do with Brandy’s murder and that they were handcuffing him.
The Police Investigation
Police arrived at Brandy’s house at 10:49 a.m. Natreena told officers that
appellant had come to her house and then to the crime scene. Natreena said that she
believed appellant had murdered Brandy. She explained how appellant had come to
her house earlier with a suspicious gash on his forehead.
Police entered the residence, first noting that the door had been kicked in with
a lot of force. There were also signs of a struggle inside with furniture knocked over
13 and broken glass scattered. Emergency medical personnel confirmed that Brandy
was dead. A subsequent autopsy showed that she died from eight gunshot wounds.
After executing a search warrant at Brandy’s house, police recovered several
fired 9-millimeter shell casings and bullets, all of which had been fired from the
same gun. Other than an inoperable shotgun, no weapons were found in the house.
There was a purse in the closet with some 9-millimeter ammunition, but it was not
the same as that used in the shooting.
Police took samples from the bloodstain on the bar in Brandy’s kitchen,
which, when tested, revealed that the chances were one in 132 octillion more likely
to be from appellant than any other contributor. Police examined the cut on
appellant’s eyebrow and noted that it was no longer bleeding and that there was no
blood on his face or clothing. When police executed a search warrant at appellant’s
house, they did not find any blood on the carpet or on the pantry door on which
appellant claimed to have hit his head. They did find a 45-caliber handgun and
ammunition.
When police searched appellant’s car, they found a box of bandages and a
bloody white towel. There was also a full box of 9-millimeter ammunition in the
back seat of the vehicle. No gun was found in appellant’s car, and no gun was ever
identified as the murder weapon.
14 Appellant’s hands were tested for gunshot residue and the result showed that
appellant had either fired or been in the immediate proximity of a weapon as it was
fired. The gunshot residue expert testified that residue deposited on appellant’s hand
four or five days earlier would not still be on his hands on January 5, 2018. The
expert did acknowledge that gunshot residue could be present from being at the scene
of a crime (depending on how recently the gunshot particles were in the air) or if the
person had recently cleaned a gun.
Appellant’s Interview
After police read appellant his statutory rights and he waived them, he gave a
statement to police. When asked when he and Brandy broke up, appellant said they
were never together and that he preferred white women, like his wife. He admitted
that he and Brandy had been in a sexual relationship.
He told police that Brandy had a 9-millimeter gun, but that he had never seen
it. He said that his only gun was a 45-caliber handgun. When asked why he had
gunshot residue on his hands, appellant explained that he had fired his gun on New
Year’s Eve. When informed that that was too long ago to account for the gunshot
residue, appellant remembered that he had shot a racoon in his yard a day and a half
before the murder. He said he had not washed his hands since then.3
3 At trial, appellant testified that he had cleaned his gun on the morning of the murder. 15 When asked about the 9-millimeter ammunition in his car, appellant at first
denied having any, but then told officers that it was from a gun that his wife used to
have, which she had since pawned.
Appellant told officers that Brandy had twice called him while he was at
Numbers, but that he had missed the call both times and had to call her back. He said
that, during these conversations, Brandy told him that her boyfriend was angry
because he knew that Brandy had been seeing someone. At one point, he suggested
to police that Brandy and her boyfriend must have argued on the day of the murder.
He said that Brandy had also reported to him that a vehicle had been continually
driving in her neighborhood. When informed that there was no record that Brandy
had called him, appellant said that he deleted her incoming calls to him but did not
delete his outgoing calls to her. He also told police that he had deleted the back-and-
forth texts between him and Brandy.
Appellant told police that he was bleeding when he went into Brandy’s house
on the morning of the murder and that his blood could be in her house. He said that
he fell at his house and cut his head and that his mother could confirm that.
Appellant denied going to Brandy’s house at any time that morning before
Natreena discovered Brandy’s body.
16 SUFFICIENCY OF THE EVIDENCE
In his fourth issue,4 appellant contends that there was legally insufficient
evidence to sustain the murder conviction and requests that the Court reverse the
judgment and render a judgment of acquittal in that case.
Standard of Review and Applicable Law
We review the sufficiency of the evidence using the standard enunciated
in Jackson v. Virginia, 443 U.S. 307, 318 (1979). See Brooks v. State, 323 S.W.3d
893, 898–912 (Tex. Crim. App. 2010). Under that standard, “the relevant question
is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond
a reasonable doubt.” See Jackson, 443 U.S. at 319; Laster v. State, 275 S.W.3d 512,
517 (Tex. Crim. App. 2009). We consider all reasonable inferences that may be
drawn from the evidence in making our determination, including all direct and
circumstantial evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.
2007).
4 We begin with appellant’s fourth issue in which he challenges the sufficiency of the evidence supporting his murder conviction because, if meritorious, it is the ground affording him an acquittal, the greatest possible relief. See Davis v. State, 413 S.W.3d 816, 820 (Tex. App.—Austin 2013, pet. ref’d) (“We begin by reviewing the sufficiency of the evidence supporting [appellant’s] conviction, the appellate ground potentially affording him an acquittal, the greatest possible relief.”); Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (“We address appellant’s second issue first because it challenges the sufficiency of the evidence and seeks rendition of a judgment of acquittal.”). 17 Evidence is insufficient in four circumstances: (1) no evidence exists that is
probative of an element of the offense in the record; (2) only a “modicum” of
evidence exists that is probative of an element of the offense; (3) the evidence
conclusively establishes a reasonable doubt; and (4) the alleged acts do not establish
the criminal offense charged. See Jackson, 443 U.S. at 314, 320; Laster, 275 S.W.3d
at 518; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The jury has the exclusive role of evaluating the facts, the credibility of the
witnesses, and the weight a witness’s testimony should be given. Penagraph v. State,
623 S.W.2d 341, 343 (Tex. Crim. App. [Panel Op.] 1981); Jaggers v. State, 125
S.W.3d 661, 672 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). The jury may
choose to believe all, some, or none of a witness’s testimony. See Davis v. State, 177
S.W.3d 355, 358 (Tex. App.—Houston [1st Dist.] 2005, no pet.). The jury alone
must reconcile any conflicts in the evidence. Wyatt v. State, 23 S.W.3d 18, 30 (Tex.
Crim. App. 2000).
Under the Jackson standard, we defer to the factfinder “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; Clayton, 235 S.W.3d at 778. If
there are conflicts in the evidence, we must presume the factfinder resolved the
conflicts in favor of the verdict and defer to that determination, if it is rational to do
so. See Jackson, 443 U.S. at 326; Penagraph, 623 S.W.2d at 343 (“A jury is entitled
18 to accept one version of the facts and reject another or reject any of a witness’[s]
testimony.”). Contradictory evidence will not diminish the
legal sufficiency of the evidence that supports the verdict. See McDonald v. State,
462 S.W.2d 40, 41 (Tex. Crim. App. 1970). If the evidence is insufficient, we must
reverse and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41 (1982).
The standard of review is the same in both direct
and circumstantial evidence cases. See King v. State, 895 S.W.2d 701, 703 (Tex.
Crim. App. 1995); Green v. State, 840 S.W.2d 394, 401 (Tex. Crim. App. 1992).
The State may prove its case by circumstantial evidence if it proves all the elements
of the charged offense beyond a reasonable doubt. See Easley v. State, 986 S.W.2d
264, 271 (Tex. App.—San Antonio 1998, no pet.) (citing Jackson, 443 U.S. at 319).
The sufficiency of the evidence is determined from the cumulative effect of all the
evidence; each fact in isolation need not establish the guilt of the
accused. See Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App. 1987). It is
important to remember that all the evidence the jury was permitted, properly or
improperly, to consider must be considered in determining the sufficiency of the
evidence. See Garcia v. State, 919 S.W.2d 370, 378 (Tex. Crim. App.
1994); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993); Rodriguez v.
State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.).
19 A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual, or if he intends to cause serious bodily injury
and commits an act clearly dangerous to human life that causes the death of an
individual. TEX. PENAL CODE § 19.02(b)(1), (2). The State is required
to prove beyond a reasonable doubt that the accused is the person who committed
the offense charged. See Johnson v. State, 673 S.W.2d 190, 196 (Tex. Crim. App.
1984); Rice v. State, 801 S.W.2d 16, 17 (Tex. App.—Fort Worth 1990, pet.
ref’d). Identity may be proved by direct or circumstantial evidence. See Earls v.
State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986); Greene v. State, 124 S.W.3d
789,792 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d). In
fact, identity may be proved by inferences. See United States v. Quimby, 636 F.2d
86, 90 (5th Cir. 1981). When there is no direct evidence of the
perpetrator’s identity elicited from trial witnesses, no formalized procedure is
required for the State to prove the identity of the accused. See Sepulveda v.
State, 729 S.W.2d 954, 957 (Tex. App.—Corpus Christi 1987, pet. ref’d). Proof
by circumstantial evidence is not subject to a more rigorous standard than is proof
by direct evidence. See McGee v. State, 774 S.W.2d 229, 238 (Tex. Crim. App.
1989). For the purposes of proving guilt beyond a reasonable doubt, direct
and circumstantial evidence are equally probative. See id.
20 Analysis
Appellant argues that the evidence is legally insufficient because the cell-
phone-data expert could not pinpoint appellant’s location at given times and, because
he did not actually “test drive” the various routes available to appellant, the expert
“had no basis to opine that it would be impossible or even difficult for Appellant to
have driven to ‘Numbers’ on the morning of January 5.”5 Regarding appellant’s
blood on Brandy’s kitchen bar, appellant argues that “[a] jury could only speculate
as to when it was placed there, and by whom” and that “[t]he same jury might as
well have speculated whether the ‘smear’ of blood ‘found’ by police 5 hours after
Appellant was [in] custody was planted in order to ‘bag’ a known ‘sex offender.’”
Finally, appellant argues that there were other explanations for the gunshot residue
on his hands, i.e., he handled the gun that Natreena saw him with that morning or he
cleaned his gun.
While appellant seeks to parse the State’s evidence and provide alternative,
reasonable explanations for each piece, we note that each fact need not point directly
and independently to the guilt of the appellant, if the cumulative force of all the
5 We note that the expert, in fact, testified that appellant might have been able to reach the Numbers game room, but, given other data collected, he concluded that appellant could not have remained at the game room for the entire time that appellant claimed to have been there. 21 incriminating evidence is sufficient to support the conviction. See Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
In this case, there was evidence that appellant and Brandy were involved in a
relationship in which appellant was controlling and Brandy seemed frightened of
him. Though the murder weapon was never found, appellant, a felon, was seen in
possession of a gun in the days before the shooting. Though appellant claimed that
he did not have a 9-millimeter gun, ammunition for a 9-millimeter gun was found in
his car. He also told police that Brandy had a 9-millimeter gun, which police never
found. Appellant’s brother testified that appellant would not know how to even clean
a gun, but appellant, to explain the gunshot residue found on his hands after the
shooting, claimed that his hobby was guns and that, in fact, he had cleaned his gun
on the morning of the shooting. He also told police earlier that had fired a gun on
New Year’s Eve and that he had shot a racoon in his yard.
Appellant’s alibi for the period in which police believed the shooting occurred
was that he was at the Numbers game room. The cell-phone-data expert testified
that, even if appellant could have reached the game room during that time, he could
not have remained there for the entire period because the data placed him at other
locations. In fact, cell-phone-data evidence placed appellant near Brandy’s house at
one point, a fact that was corroborated when Brandy’s next-door-neighbor saw him
on the side of the road in their neighborhood.
22 There were signs of a struggle at the murder scene. Furniture was overturned
and glass was broken. Police discovered a bloodstain on the bar in Brandy’s kitchen,
which is clearly visible in photographs taken of the crime scene. DNA analysis of
the bloodstain showed that chances are 1 in 132 octillion more likely that the blood
came from appellant than any other contributor. While appellant attempts to suggest
that his blood may have been there for a substantial period, there was also a fresh
cut on appellant’s forehead the morning of the murder. While appellant and his
mother testified that appellant fell at his home and that perhaps his head was bleeding
when he ran into Brandy’s house after Natreena found her body, both Natreena and
police note that appellant’s head was not bleeding at that time. Appellant was seen
on video wiping something off his brow at the Piggy Bank game room before the
time that he claims that he fell and cut his head at home. No blood was recovered
from appellant’s home.
Natreena found it strange that, on the morning of the murder, appellant came
to her house for first aid because he had never before been to her house without
Brandy. Appellant also arrived at Brandy’s house right after Natreena discovered
her body. While appellant claimed that he saw Natreena driving toward Brandy’s
house and followed her there so that she could help him with his band-aid, there was
also evidence that, from appellant’s location at the Dollar General Store where he
23 bought band-aids, he would not have been able to see Natreena’s car driving toward
Brandy’s house.
Finally, there was evidence that appellant called and texted Brandy multiple
times the morning of her murder, and during those exchanges, Brandy told appellant
that she wanted to end her relationship with him while pursuing her relationship with
Reginald further. Appellant admitted that he deleted the texts between he and Brandy
and that he deleted what he claims were incoming calls from Brandy.
While some evidence is circumstantial, its cumulative force provided more
than a scintilla of evidence to support a reasonable conclusion that appellant shot
and killed Brandy Rhines. See Jackson, 443 U.S. at 320 (setting forth standard for
legal insufficiency). To the extent that there was any evidence suggesting otherwise,
the jury had the exclusive role of weighing the evidence and the witnesses’
credibility, and we will defer to their determinations as evinced by their verdict of
guilt. See id. at 326.
Accordingly, we overrule issue four.
INEFFECTIVE ASSISTANCE OF COUNSEL
In issues one and two, appellant contends that he received ineffective
assistance of counsel because trial counsel: (1) emphasized appellant’s preference
for white women over black women, (2) requested that both the weapons charge and
the murder charge be tried together, (3) did not request that appellant be allowed to
24 stipulate to the predicate offense for the murder charge, i.e., attempted sexual assault
of a juvenile, (4) failed to seek funds to hire expert witnesses, and (5) failed to
subpoena an exculpatory witness.
Standard of Review
The Sixth Amendment to the United States Constitution guarantees the right
to the reasonably effective assistance of counsel in criminal prosecutions. U.S.
CONST. amend. VI; see TEX. CONST. art. I, § 10. To prove a claim of ineffective
assistance of counsel, an appellant must show that (1) his trial counsel’s performance
fell below an objective standard of reasonableness and (2) there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. Strickland v. Washington, 466 U.S. 668, 687–88
(1984); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). The appellant
has the burden to establish both prongs by a preponderance of the evidence. Jackson
v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). And, an appellant’s “failure
to satisfy one prong of the Strickland test negates a court’s need to consider the other
prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App. 2009).
In reviewing trial counsel’s performance, we look to the totality of the
representation to determine the effectiveness of counsel, indulging a strong
presumption that counsel’s performance falls within the range of reasonable
professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,
25 482–83 (Tex. Crim. App. 2006). To rebut that presumption, a claim of ineffective
assistance must be “firmly founded in the record,” and “the record must
affirmatively demonstrate” the meritorious nature of the claim. Menefield v. State,
363 S.W.3d 591, 592 (Tex. Crim. App. 2012) (internal quotations omitted). A
legitimate and reasonable trial strategy is not ineffective assistance, even if, on
hindsight, the strategy appears to have been unwise. See Heiman v. State, 923
S.W.2d 622, 626–27 (Tex. App.—Houston [1st Dist.] 1995, pet. ref’d). That another
attorney, including appellant’s counsel on appeal, might have pursued a different
course of action does not necessarily indicate ineffective assistance. Johnston v.
State, 959 S.W.2d 230, 237 (Tex. App.—Dallas 1997, no pet.).
In meeting the prejudice prong, “[i]t is not enough for the defendant to show
that the errors had some conceivable effect on the outcome of the
proceeding.” Strickland, 466 U.S. at 693. To prove prejudice, a claimant must
establish a “reasonable probability” that the result of the proceeding would have
been different if counsel had not been deficient. Strickland, 466 U.S. at 694. A
reasonable probability is one that is sufficient to undermine confidence in the
outcome of the trial. Id. Whether there is a reasonable probability that confidence in
the outcome of the trial is undermined can turn on evidence adduced at trial because
“a verdict or conclusion only weakly supported by the record is more likely to have
been affected by errors than one with overwhelming record support.” Id. at 696.
26 Reference to Victim’s Race
First, appellant claims that “[t]he emphasis placed by defense counsel on
Appellant’s preference for white vs. black women was inexcusable by any rationale,
and [it] was unquestionably damaging.”
When being questioned by police, and presumably to downplay his
involvement with Brandy, a black woman, appellant told police that he had a
preference for white women and would never get serious with a black woman. In
cross-examining appellant, prosecutors raised this issue to have appellant to admit
that Brandy was an exception to his general preference. Appellant responded that he
was not serious with Brandy, “but she got closer than I would normally allow.” On
redirect examination, trial counsel raised the issue again, apparently to show that
Brandy’s being black had nothing to do with why appellant wanted to stay with his
wife, and the following exchange took place:
Q: Were you married to a white woman?
A: Yes.
Q: Were you planning to leave your white wife for a black woman?
A: No, sir. Not at the time, no, sir.
Q: When you came to the time that you realized you were getting closer than you wanted it to go, what did you do?
A: I backed off. 27 Q: Did that have anything to do with whether [Brandy is] white or black or anything like that, or just the fact that you wanted to stay with your wife.
A: I wanted to stay with my wife, and other situations occurring.
Rather than a needless, uninvited mention of the decedent’s race, see Bryant
v. State, 25 S.W.3d 924, 926 (Tex. App.—Austin 2000, pet. ref’d), it seems that
counsel was attempting to rehabilitate appellant on the race issue by having him
testify that Brandy’s race had nothing to do with why he decided to stay with his
wife. As such, counsel’s questioning on the issue could have been reasonable trial
strategy.6
Trying the Weapons and Murder Charges Together
Appellant also contends that he received ineffective assistance when counsel
had him plead guilty to the weapons charge before the jury, thereby placing the fact
that he had a previous conviction for attempted sexual assault of a child 7 before the
jury the trial even began.
6 We note that, at the new-trial hearing, trial counsel was not asked whether he had a strategy when he questioned appellant regarding the race issue. Thus, the record is silent on the issue and appellant has not rebutted the trial-strategy presumption on this issue. See Menefield, 363 S.W.3d at 592. 7 Attempted sexual assault of a child was the predicate offense for the felon-in- possession-of-a-firearm charge, and, as such, was mentioned when the felon-in- possession-of-a-firearm charge was read to the jury before appellant pleaded guilty to it. 28 At the motion-for-new-trial hearing, trial counsel testified about several of the
reasons he chose to have the two offenses tried together. First, counsel noted that if
the offenses were tried together, the trial court could not “stack” the punishments;
rather, they would run concurrently. See TEX. PENAL CODE § 3.03. Counsel is not
ineffective for asking for a consolidated trial for this reason. See Adekeye v. State,
437 S.W.3d 62, 72 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). Trial counsel
also testified regarding his trial strategy in consolidating the cases for trial as
follows:
Q: Now, as I understand it, your theory of defense was to have Mr. Coleman plead to the weapons charge in the same trial so the jury would, in some sense, give him credit for honesty. And that would bolster his credibility with respect to denying the ultimate murder charge. Is that it?
A: The answer is yes.
Counsel also testified that “the credibility of Mr. Coleman was important due
to the strategy we used for his defense” and that “based on the strategy we employed,
[appellant’s credibility] was probably the most important [issue in the case].”
Counsel testified that he “believed that those statements [to police in which appellant
admitted possessing a gun] would be played to the jury. And[,] if they believed him,
he needed to prove that he was being honest and credible and willing to accept
responsibility for the actions he actually took.” Trial counsel employed this trial
strategy at closing when he argued as follows:
29 Now, we admit that having your hobby be shooting when you’re not legally permitted to possess a firearm outside your home is not what we want the type of activity to condone. And I certainly understand that. And I’m not asking you to do that because [appellant] has confessed to [the felon-in-possession charge] and stands ready to accept his punishment. But importantly [appellant] thought it was so important that he assist helping finding Brandy’s killer, true killer that he was willing to risk years in the penitentiary to assist the investigation. So now where is he? He’s about to lose his freedom. He’s lost his wife. And all he got out of this for his assistance is the right to be put on trial for murder.
The Texas Court of Criminal Appeals has held that it is a valid trial strategy
to “introduce[e] favorable and unfavorable evidence in order to appear open and
honest with the jury[.]” See Ex parte West, No. WR-78,43902, 2015 WL 9000801,
at *6 (Tex. Crim. App. June 8, 2016) (mem. op., not designated for publication); see
also Varughese v. State, 892 S.W.2d 186, 196 (Tex. App.—Fort Worth 1994, pet.
ref’d) (holding that failure to object was part of strategy to appear open and
honest); Baber v. State, 931 S.W.2d 359, 362 (Tex. App.—Amarillo 1996, pet.
ref’d.) (holding “cooperative honesty” was trial strategy); Huerta v. State, 359
S.W.3d 887, 894 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (recognizing as
permissible trial strategy decision not to object to evidence “in an effort to make
appellant appear more honest and forthright”). Thus, appellant has not rebutted the
presumption that counsel’s decision to try the cases together was not trial strategy.
30 Failing to Stipulate to Predicate Offense
Appellant also argues that trial counsel should have requested that appellant
be allowed to stipulate to the predicate offense of attempted aggravated sexual
assault, while still pleading guilty to the felon-in-possession charge. We agree that
to prove the prior-felony-conviction element of the felon-in-possession charge, the
State only needs to prove the defendant’s status as a felon, without any need to prove
the particular type of felony conviction. Adekeye, 437 S.W.3d at 72; see State v.
Mason, 980 S.W.3d 635, 641 (Tex. Crim. App. 1998). When stipulating to evidence
of a defendant’s prior felony, trial “[c]ousel could . . . just stipulate[] that [the
defendant] was a convicted felon, without saying anything more.” Adekeye, 437
S.W.3d at 72. The State responds that there was no need for counsel to stipulate to
the predicate offense in this case because the trial court had already ruled that
appellant could be cross-examined about that same prior conviction and “the jury
was going to hear about the substance of appellant’s prior conviction when he
testified.”
However, we need not decide whether counsel’s performance in this respect
was ineffective because, here, appellant has not shown that, but for the reading of
the unredacted felony-in-possession charge, he would not have been found guilty of
31 murder.8 See Adekeye, 437 S.W.3d at 73. (finding no prejudice for purposes of
ineffective assistance based on stipulation informing jury of appellant’s prior felony
conviction for aggravated robbery when evidence of appellant’s guilt for current
offense of aggravated robbery and felon-in-possession was overwhelming); see also
McIlroy v. State, 188 S.W.3d 789, 796–97 (Tex. App.—Fort Worth 2006, no pet.)
(holding that, even though trial court erred in permitting State to read entire
indictment of felon-in-possession charge, including predicate offense, error was
harmless because of “overwhelming evidence” of defendant’s guilt of current
offense).
In this case too, there was strong evidence of appellant’s guilt on the murder
charge, as detailed in our sufficiency-of-the-evidence review above. And, although
the reading of the indictment informed the jury that appellant had a prior conviction
for attempted sexual assault of a juvenile, that issue was not mentioned again by
either appellant or the State. Indeed, there is nothing in the record to support
appellant’s assertion that the jury “convict[ed] Appellant on the Murder charge for
a past sex offense against a minor.” Accordingly, appellant fails to meet the prejudice
prong of Strickland on this issue.
8 We need not determine the deficient-performance prong when prejudice is not also shown. See Washington v. State, 417 S.W.3d 713, 724 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d). 32 Failure to Seek Funds to Hire Expert Witnesses
At trial, the State presented evidence regarding gunshot residue found on
appellant’s hands after his arrest and cell-phone data reflecting the location of
appellant’s phone at certain periods of time. On appeal, appellant contends that
counsel was ineffective for failing to seek funds to hire experts to address these two
issues. Appellate counsel goes so far as to suggest that trial counsel, who was
retained, only takes cases in which “he could pocket fees with relatively minimal
time and effort” and that hiring an expert would go against this “business model.”9
Regarding the gunshot-residue evidence, at the new-trial hearing, trial counsel
testified that he did not call an expert on gunshot residue because he did not believe
that such an expert could assist appellant’s defense. Indeed, appellant’s explanation
for the gunshot residue on his hands was that he cleaned his gun the morning of the
shooting. Trial counsel obtained testimony from the State’s expert that cleaning a
gun could have left the gunshot residue found on appellant’s hands. Having
successfully produced evidence of the limitations of gunshot-residue evidence
through the cross-examination of the State’s expert, appellant cannot show that
counsel’s performance was deficient because he did not also seek testimony from
another expert testimony on the issue.
9 We also address this “conflict-of-interest” issue in issue three. 33 Regarding the cell-phone-data evidence, trial counsel was not questioned
specifically about why he did not call an expert on cell-phone-data evidence, other
than a question about why he did not call any experts. The general rule is that the
failure to call a witness does not constitute ineffective assistance of counsel without
a showing that the witness was available to testify and that his testimony would have
benefitted the defendant. Cate v. State, 124 S.W.3d 922, 927 (Tex. App.—Amarillo
2004, pet. ref’d) (citing Butler v. State, 716 S.W.2d 48, 55 (Tex. Crim. App. 1986)).
There is no showing in the record that (1) an expert was available and that (2)
such testimony would have benefitted appellant. And, the record shows that trial
counsel fully cross-examined the State’s expert about the limitations of such
evidence, with the expert admitting to the jury that the cell-phone data could not
place appellant at a specific location and that the evidence could not establish that
appellant never went to the Numbers game room on the day of the offense. Likewise,
there is nothing in the record to show that, had appellant called an expert on cell-
phone-data evidence, the result of the case would have been different.
Failure to Call Exculpatory Witness
Appellant’s defense at trial was that he could not have committed the offense
because he was at the Numbers game room when it occurred. When police spoke
with a man named Cedo, who worked at the Numbers game room, Cedo told them
that appellant was present at the game room that morning. Appellant contends that
34 trial counsel was ineffective for failing to subpoena Cedo to testify on his behalf at
trial.
When questioned about the decision not to subpoena Cedo, trial counsel
explained that he had contacted Cedo “and he declined to attend.” He also testified
that, while Cedo’s statement to police was favorable to appellant, “[i]t just didn’t
correspond with reality.” Specifically, Cedo told police that appellant was at
Numbers “all the way through 9:00 which contradicted the defendant’s own timeline
[of the events].” Cedo also told police that appellant was at Numbers that morning
with his mother, but the undisputed evidence established that appellant’s mother was
at dialysis the morning of the shooting. Trial counsel concluded that, considering the
contradictions between Cedo’s statement to police and the established evidence, it
would not have been helpful to have subpoenaed Cedo because “it could have easily
been argued that Mr. Cedo was just remembering a different day [when appellant
was at Numbers with his mother].” And, because one of the officers testified that
Cedo told police about appellant’s presence at Numbers, the substance of Cedo’s
statement to police was already before the jury without the necessity of subjecting
him to cross-examination. Under these circumstances, appellant has not shown that
trial counsel’s strategy in declining to subpoena Cedo was unreasonable or that
Cedo’s testimony, had he been called, would have changed the result of the trial.
Accordingly, we overrule issues one and two.
35 CONFLICT OF INTEREST
In issue three, appellant contends that “[t]he totality of the record
demonstrates that trial counsel labored under an internal conflict of interest,
requiring a new trial as to both convictions.” In his brief, appellant suggests that it
was appellant’s “business model” to substitute for appointed counsel, and to take
those cases “with the expectation that they would not go to trial, and that he could
pocket fees with relatively minimal time and effort.” In support of this contention,
appellant presented evidence at the new-trial hearing that, “in a two-year period, trial
counsel had substituted in for appointed counsel in 118 felony cases” and that his
“typical fee was $500.” At the motion for new trial hearing, appellate counsel
questioned trial counsel about whether he was known in the jails and prisons as the
“$500 lawyer.” Appellate counsel argues that trial counsel “simply under-bid” the
case and that when appellant refused to plead guilty, trial counsel was acting under
a conflict of interest and had a “disincentive” to vigorously defend appellant.
Applicable Law
The Sixth Amendment right to reasonably effective assistance of counsel
includes the right to conflict-free representation. Orgo v. State, 557 S.W.3d 858, 861
(Tex. App.—Houston [14th Dist.] 2018, no pet.) (citing Monreal v. State, 947
S.W.2d 559, 564 (Tex. Crim. App. 1997) and Goody v. State, 433 S.W.3d 74, 79
(Tex. App.—Houston [1st Dist.] 2014, pet. ref’d)). Our standard for analyzing
36 claims of ineffective assistance of counsel due to a conflict of interest is well
established. Odelugo v. State, 443 S.W.3d 131, 136 (Tex. Crim. App. 2014)
(citing Cuyler v. Sullivan, 446 U.S. 335, 348–50 (1980)). To demonstrate a violation
of the right to conflict free representation, a defendant must show that (1) his counsel
was burdened by an actual conflict of interest and (2) the conflict actually colored
counsel’s actions during trial. Id. An “actual conflict of interest” exists if counsel is
required to make a choice between advancing their client’s interest in a fair trial or
advancing other interests to the detriment of their client’s interest. Id.
Analysis
Appellant’s attempt to portray trial counsel’s “business model” as creating a
conflict of interest is not supported by the record. Appellant merely theorizes that
the amount that trial counsel charged for the case was an “underbid” and was made
with the expectation that appellant would plead guilty. However, appellant provided
no evidence to support this assertion. To the contrary, trial counsel testified that he
had no expectation that appellant would plead guilty, especially when appellant
maintained his innocence and rejected a plea agreement, insisting that he was
innocent. When appellate counsel suggested that trial counsel took cases without any
investigation beforehand, trial counsel responded, “Absolutely not. That’s false.
Completely false. I make every due diligence effort to review exactly what’s going
on in the file before I make any agreement, commitment to come into any case.”
37 The suggestion that trial counsel did not charge enough to provide effective
assistance, without more, is not evidence that trial counsel was acting under an actual
conflict of interest. There is no evidence that trial counsel was forced to choose
between his own interests and those of appellant. See Id. To so hold would invite
appellate courts to speculate regarding when retained counsel’s fees are “high
enough” to adequately represent a defendant, which we decline to do.
Here, the record shows that trial counsel provided appellant with a vigorous
defense. He filed pretrial motions, engaged in plea negotiations with the State, was
familiar with applicable principles of law, and actively participated in a seven-day
trial, during which he extensively cross-examined the State’s witnesses—including
the expert witnesses. Additionally, trial counsel called six defense witnesses,
including appellant and his mother, and presented evidence to support appellant’s
alibi defense. We have already held that trial counsel did not provide ineffective
assistance for the reasons urged by appellant in issues one and two. Thus, even if we
were to agree that counsel was burdened by an actual conflict of interest, which we
do not, there is nothing to show that the conflict colored counsel’s actions during
trial. See id.
Accordingly, we overrule issue three.
38 CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Countiss and Farris.
Do not publish. TEX. R. APP. P. 47.2(b).