Carrendius Walker v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: March 27, 2024
• Docket: 05-22-01119-CR
• Status: Published

Opinion

AFFIRMED as MODIFIED; and Opinion Filed March 27, 2024.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-01119-CR

CARRENDIUS WALKER, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F19-76545

MEMORANDUM OPINION Before Justices Garcia, Breedlove, and Kennedy Opinion by Justice Kennedy A jury found appellant, Carrendius Walker, guilty of capital murder. The

State did not seek the death penalty, so the trial court sentenced appellant to life

imprisonment without parole. In nine issues, appellant challenges (1) the sufficiency

of the evidence to support his capital murder conviction, (2) the trial court’s

evidentiary rulings, and (3) various aspects of the jury charge. In a cross issue, the

State asserts that the judgment should be modified to properly reflect the sentence

imposed. We affirm the trial court’s judgment as modified herein. Because all

issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4. BACKGROUND

Appellant was indicted for the capital murder of Brian Harp, the owner of

Café Delicious. The indictment alleged appellant intentionally caused Harp’s death

by shooting him with a firearm while in the course of committing and attempting to

commit the offense of robbery. Appellant pleaded “not guilty” to the charged

offense and proceeded to trial before a jury.

The State’s witnesses at trial included David Abrom, an accomplice to the

offense who acknowledged that he was testifying in exchange for an offer of a

twenty-two-year sentence on a reduced murder charge.1 Other witnesses for the

State included various law enforcement officials and civilians involved in the

investigation of the murder, and many others. The defense did not call any

witnesses. The defense’s theory appeared to be that Abrom was not credible, and

the State did not corroborate his testimony.

I. Accomplice Witness Testimony as to Pre-Arrest Events

Abrom’s testimony established the following. On the morning of September

25, 2019, Abrom received a call from Eric Curtis, also known as “Nine” and

“Rondo,” telling him that he needed some help. Abrom retrieved his assault rifle

from his “baby mama’s house” and went to South Dallas to meet Curtis. When he

arrived, Curtis was in a silver Mercedes, that he often drove, with three other men:

1 The record reflects that Abrom had numerous convictions and was a former gang member of 330 and the Goom Squad. –2– appellant, also known as “K.D.”; James Moore, also know as “Beamer”; and an

individual identified only by his nickname “Third.” Appellant was in the driver’s

seat, Curtis was in the passenger seat, and Moore and Third were in the back seat,

with Moore behind appellant and Third behind Curtis. Abrom got into the back seat

and sat between Moore and Third. Everyone in the car was armed: Abrom,

appellant, and Curtis carried assault rifles, and Moore and Third carried handguns.

After he got in the car, Abrom learned the plan was to commit a robbery at a

restaurant called Café Delicious. Abrom understood the restaurant was a store front

for gambling and drugs and that appellant and Curtis had previously been to Café

Delicious to gamble and buy drugs. “Trick dice” had reportedly been used at the

restaurant, and appellant was upset because he “got hit.”

The group arrived at the restaurant around noon. Appellant pulled into a

parking spot and then backed into the spot, so that it would be easy to get away.

Moore went inside the restaurant to “scope it out” while the others remained in the

vehicle. There were only a few people inside the restaurant. Moore returned to the

vehicle and reported what he saw. Moore remained with the vehicle while the other

men went inside the restaurant. Appellant wore a green mask, and Curtis wore a

black mask. Appellant wore a mask because people at Café Delicious knew him and

he did not want to be recognized. The group split up once they were inside the

restaurant. Abrom went to the back of the restaurant, Curtis went to the dining area

where a man with money and drugs was sitting, and appellant and Third went to an

–3– office on the side of the restaurant. Abrom found the restaurant’s owner, Brian Harp,

in the back, forced him to the ground, and searched him. Abrom then directed Harp

to the area behind the counter and followed him with his gun to Harp’s back. As

Harp walked with both hands in the air, appellant appeared from around the corner

and fired his rifle at Harp. Harp fell to the ground, and the group ran out of the

restaurant. Everyone returned to the Mercedes and Moore, now in the driver’s seat,

drove them away from the scene and to Curtis’s girlfriend’s apartment, the spot

where they hang out, where they divided money and drugs that were taken during

the robbery. After they left the restaurant, appellant discovered that he had lost his

flip phone. He did not know where he lost it. They all looked for it in the apartment

and in the Mercedes, and Curtis called the phone’s number in an effort to see if he

could locate it.

Surveillance videos of the restaurant and the parking lot were admitted into

evidence, published to the jury,2 and snippets of same were shown to the jury with

Abrom identifying the Mercedes pulling into the parking lot of Café Delicious as

Curtis’s car; indicating snippets of the videos show the car backing into a parking

2 The videos of the parking lot showed the Mercedes arriving; a man exiting the vehicle from the back driver’s side of the car and returning, and then four men leaving the car; the driver wearing a green mask, the passenger wearing a black mask, and two individuals from the back seat wearing hoodies. The videos also showed the men getting back into the car, the man wearing the green mask getting into the back seat behind the driver, the men in the hoodies getting into the back seat from the right side of the vehicle, and the man wearing the black mask getting into the passenger seat. The videos from inside the restaurant showed Harp with his hands in the air, Abrom backing away, and Harp being shot by the individual wearing the green mask.

–4– spot, Moore leaving the vehicle, Moore coming back to the vehicle, Curtis getting

out of the front passenger seat, Third getting out of the back seat on the passenger

side, himself getting out of the middle of the back seat from the right side of the

vehicle, appellant getting out of the driver’s seat, people running to the car, appellant

running to the left side of the vehicle, Third followed by Abrom running to the right

back side of the vehicle, and Curtis carrying a bag. Abrom confirmed that a minor

switch up in the positioning of the individuals in the car occurred, with Moore

becoming the driver and appellant sitting in the driver’s side back seat where Moore

had been sitting when they arrived.

With respect to snippets from the surveillance videos of the inside of the

restaurant, Abrom indicated some of them showed Moore walking into the

restaurant; Moore walking out of the restaurant; Curtis, appellant, Abrom, and Third

walking into the restaurant; and the shooting. Abrom identified Harp as the man

with his hands in the air in the video. Abrom indicated that he was startled and

shocked when Harp was shot. At first he thought he had also been shot. Abrom

identified the person wearing the green mask, the person who shot Harp, as appellant

and confirmed that the video showed appellant was wearing gloves at the time of the

offense.

II. Other Evidence Presented Concerning Pre-arrest Events

Through Detective Frank Serra, the lead detective in the investigation of the

offense, and other law enforcement officials, the State established the following. A

–5– call went out to 9-1-1 at 12:20 p.m., and police and paramedics were dispatched to

the scene, followed by crime scene investigators and Detective Serra. Among the

items collected at the scene were two fired shell cases on the floor behind the counter

and a flip phone in the parking lot. Detective Serra viewed footage from the

restaurant’s surveillance cameras and saw how the offense occurred. He also viewed

video of the parking lot.

Detective Serra testified that various screenshots from the videos that were

admitted into evidence showed that the flip phone they found in the parking lot of

Café Delicious was not there before the suspect vehicle arrived. In addition,

Detective Serra established that in viewing the videos he determined no one walked

between the suspect vehicle and the vehicle parked next to it between the time the

vehicle arrived and left. The flip phone was found on the driver’s side of the vehicle,

the side of the vehicle where the man in the green mask exited and returned to the

vehicle. In addition, Detective Serra explained that video footage of the parking lot

showed an ICN number on the windshield of the Mercedes. ICN numbers are

assigned to vehicles that have been impounded by the City of Dallas, so Detective

Serra was able to use the ICN number to discover the vehicle had been impounded

on September 14, 2019, and was registered to Quintavia Johnson, Curtis’s girlfriend.

On the evening of the murder, a number of undercover officers conducted

surveillance outside of the apartment listed as the address for Johnson on her vehicle

registration. The officers observed the Mercedes as well as a black Chrysler 300 and

–6– a dark green Honda Accord at that location. The officers also observed various

armed individuals go back and forth from the three cars to the apartment and what

appeared to be an individual searching the Mercedes. The officers contacted patrol

Officer Matthew Gronau and his partner about the Mercedes and its suspected

involvement in the murder of Harp.

Later that night, Officer Gronau and his partner conducted a traffic stop of the

Mercedes on the basis of a missing front license plate. Johnson was the only

occupant of the vehicle. The officers detained Johnson on traffic violations and

impounded the vehicle. An inventory search of the vehicle revealed a number of

identification cards, a black face mask and a green Ninja Turtle mask. One of the

identification cards bore the name of Eric Curtis. Officer Gronau’s body cam video

was played for the jury.

That same night, Detective Serra obtained a search warrant for the apartment

they had been surveilling and arranged for a SWAT team to execute same due to the

violent nature of the murder of Harp and the number of individuals and weapons

involved. As the SWAT team arrived at the apartment complex, individuals carrying

firearms got into vehicles and began to leave. One person took off running from

police officers and was shot and killed. That person was later identified as Curtis.

Sometime between midnight and leading into the morning of September 26,

officers conducted a traffic stop of the dark green Honda Accord that had previously

been seen at the apartment complex. Abrom was one of the vehicle’s occupants, and

–7– he was wearing the same clothes that were seen on one of the suspects in the

restaurant’s surveillance video. Abrom was arrested and taken to police

headquarters, where he waived his rights and spoke with Detective Serra.

III. Accomplice Evidence Concerning Post Arrest Events

Abrom indicated that during his first interview with Detective Serra he was

not completely honest because he was high. After he terminated the interview and

was taken to jail, he called his girlfriend and discovered police had searched her

apartment and found the assault rifle he carried during the robbery. He asked his

girlfriend to reach out to Detective Serra to schedule another interview. Abrom

claimed he was honest with Detective Serra during the second interview and that

after he told Detective Serra what had happened, Detective Serra showed him some

snippets of the surveillance videos and screenshots. Abrom did not see all of the

surveillance videos until the Friday before the trial started. Abrom was able to

identify the people in the screenshots Detective Serra showed him. With respect to

how to locate appellant, Abrom indicated that appellant drove a black Cadillac and

that a day or two before the offense he ran from the law.

IV. Non-Accomplice Evidence Concerning Post Arrest Events

According to Detective Serra, during his first interview Abrom admitted to

being in the Mercedes on the date of the murder and identified the nicknames of

individuals he had been with that day, including Nine, Ten, Rondo, Third, Beamer,

and Kodak. Detective Serra showed Abrom still shots of people getting out of the

–8– car and a snippet from the surveillance video showing the shooting. A few days

later, Detective Serra received a phone call from a family member telling him Abrom

wanted to give another statement. During the second interview, Abrom told

Detective Serra the details of what happened on September 25, how Curtis called

him that morning, how he and his accomplices gathered at a location in South Dallas,

why they targeted Café Delicious, how they drove to the location in Curtis’s

girlfriend’s silver Mercedes, where the individuals were situated within the vehicle

when they arrived and when they left, what happened when they arrived at the

restaurant, and where they went after leaving the restaurant. Detective Serra showed

Abrom screenshots from the surveillance videos. Abrom identified some of the

people in the screenshots and gave the nicknames of Third, K.D., Beamer, and

Rondo. Abrom indicated that appellant put on a green face mask before entering the

restaurant. While police may have mentioned to Abrom that a phone was found at

the crime scene, it was Abrom who described the phone as a flip phone. Abrom

indicated that when appellant realized he had lost his phone, Curtis called the number

to see if they could find same. Abrom gave Detective Serra permission to look at

his phone. Detective Serra, in searching Abrom’s phone, discovered calls between

Curtis and Abrom on the day of the offense.

After the second interview with Abrom, Detective Serra examined the flip

phone that had been retrieved from the restaurant’s parking lot. He saw that the

phone had connected with several phone numbers on the date of the murder,

–9– including numbers associated with phones belonging to appellant’s mother and

appellant’s girlfriend. He also found text messages in which the phone’s owner was

identified as Carrendius or K.D. and saw that a call had been placed by Curtis’s

phone to the flip phone roughly an hour after Harp was murdered, corroborating

what Abrom said about Curtis calling appellant’s phone after they left the restaurant

and when appellant could not find his phone, and about appellant’s involvement in

the robbery and murder. Appellant’s girlfriend, Shaquai Johnson, called the flip

phone at 10:52 a.m. and 11:55 p.m. on the day of the offense. There were multiple

missed calls on the day of the murder indicating there was no successful

communication with the device after the murder.

A warrant issued for appellant’s arrest. Officer Jason Kennedy executed the

arrest warrant and seized a cell phone from appellant during the process. Officer

Kennedy gave the cell phone to Detective Serra after transporting appellant to

headquarters. An extraction of that phone revealed it had been activated on

September 26, 2019, at 2:33 p.m. The first calls from the new phone were made to

appellant’s mother and girlfriend.

At headquarters, appellant waived his rights and spoke with Detective Serra.

The interview was recorded. Portions of the videos of appellant’s interview with

Detective Serra were played for the jury. Detective Serra indicated that appellant

did not admit to his part in the capital murder, but he did provide some information

that was helpful to the investigation including the phone number for his mother,

–10– which matched a number he found in the flip phone that had been left at the crime

scene. Appellant did not deny that the phone was his and informed Detective Serra

that he does not let anyone else use his phones, and that he is in sole possession of

same. Appellant provided no explanation as to why the phone was found in the

parking lot of Café Delicious. Appellant admitted that he made money by gambling

and at first denied knowing Curtis but later admitted that he knew him. Detective

Serra considered appellant’s getting money by gambling to be significant because it

was one of the components that factored into the offense at Café Delicious.

Appellant spoke quite a bit to Detective Serra about Curtis being fatally shot and

about attending a candlelight vigil for him. An extraction from the phone appellant

had with him at the time of his arrest indicated appellant knew Curtis much more

than he led on in his interview with Detective Serra. An extraction of that phone

revealed a video that was taken at the candlelight vigil.

As part of the ongoing investigation, Detective Serra obtained the Instagram

records for Moore and found a video that Moore had posted at 3:25 p.m. on the date

of the offense. The video was played for the jury. The video was recorded from

inside a vehicle by the driver of same. The video showed a Mercedes logo on the

steering wheel and the same ICN number on the vehicle’s windshield that was seen

on the Mercedes in the video from the restaurant’s parking lot. The video did not

show the faces of the vehicle’s occupants, but the driver was heard saying, “Man,

–11– Fuck Third.” The nickname “Third” had been previously provided by Abrom to

Detective Serra.

At the close of evidence, the jury was instructed on the law of parties and the

law regarding accomplice-witness testimony. The jury was instructed that Abrom

was an accomplice as a matter of law and that it could not convict appellant unless

it believed Abrom’s testimony to be true, and there was other evidence tending to

connect appellant to the capital murder. The jury found appellant guilty of capital

murder, as charged in the indictment, and the trial court assessed the mandatory

punishment of confinement for life without parole in the Institution Division of the

Texas Department of Criminal Justice. TEX. PENAL CODE ANN. § 12.31(b)(2).

DISCUSSION

I. Accomplice Witness Testimony

In his first issue, appellant challenges the sufficiency of the evidence to

support his conviction for capital murder.

In reviewing the legal sufficiency of the evidence, we review the evidence in

the light most favorable to the verdict to determine whether a rational trier of fact

could have found the essential elements of the crime beyond a reasonable

doubt. Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). This is a

highly deferential standard, as it is the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh evidence, and to draw inferences from basic

–12– facts to ultimate conclusions. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007).

The State must prove (1) the offense was committed, and (2) the accused was

the person who either committed or participated in the crime. Johnson v. State, 673

S.W.2d 190, 197 (Tex. Crim. App. 1984). Mere presence alone is not enough. Id.

The standard of review for circumstantial-evidence cases on appeal is the same as

for direct-evidence cases. Alexander v. State, 740 S.W.2d 749, 757 (Tex. Crim.

App. 1987). In reviewing the sufficiency of the evidence to support a conviction

based on circumstantial evidence, the evidence is viewed in the light most favorable

to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). In

a circumstantial evidence case, the State is not required to exclude every hypothesis

that the criminal act may have been committed by another person. Brandley v. State,

691 S.W.2d 699, 703 (Tex. Crim. App. 1985). The State must exclude every

reasonable hypothesis raised by the evidence that tends to exculpate the accused. Id.

Appellant concedes that the State’s evidence shows appellant may have

committed the offense, but he contends that his presence near the scene is

insufficient to support his conviction. Appellant contends it was never established

when his phone was left at the crime scene and claims, because the evidence showed

he had been to Café Delicious to gamble prior to the offense, he could have dropped

the phone on a previous occasion. Appellant urges there was no physical evidence

that tied him to the crime scene. He claims because the only DNA evidence that

–13– came back with certainty was that DNA of a hair taken from the green mask matched

Abrom and no weapons or ammunition were found in the Mercedes and no firearm

was recovered that matched the shell casings found at the scene, the evidence is

legally insufficient to support his conviction.

Contrary to appellant’s contentions, the State presented evidence that the flip

phone was dropped at the scene of the crime after the Mercedes arrived and before

it left and that the phone was dropped on the driver’s side of the vehicle, the side

where the video showed the individual wearing the green mask sat when they arrived

and when they left. In addition, DNA evidence is not required to obtain a conviction.

Our law relating to the sufficiency of evidence necessary to identify those criminally

charged is demanding of certainty without limiting the state to specific forms or

types of evidence. See, e.g., g., Pena v. State, 441 S.W.3d 635, 641 (Tex. App.—

Houston [1st Dist.] 2014, pet. ref’d) (noting that DNA evidence was

not required); see also Williams v. State, 196 S.W.3d 365, 369 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d) (affirming robbery conviction on sufficiency challenge

where there was evidence available to support jury’s finding, but no DNA evidence,

no fingerprint evidence; no other witnesses (beside the complainant) to the robbery;

no line-up performed; and where it was dark at the time of the robbery, likely

limiting visibility of complainant); see also Harmon v. State, 167 S.W.3d 610, 614

(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d) (“A rational jury could have

found appellant guilty of aggravated robbery without DNA evidence, fingerprint

–14– evidence, or evidence of the gun or cash Newby gave to appellant”). Thus, the fact

that the State did not recover the murder weapon and had little in the way of DNA

evidence is not dispositive of the issue of whether the evidence is sufficient to

support appellant’s conviction.3

We next address appellant’s contention the State failed to corroborate

Abrom’s accomplice-witness testimony. An accomplice is someone who

participates with the defendant before, during, or after the commission of an offense

and acts with the required culpable mental state. See Druery v. State, 225 S.W.3d

491, 498 (Tex. Crim. App. 2007). A conviction may not be based on the testimony

of an accomplice witness unless the accomplice-witness testimony is corroborated

by other evidence “tending to connect” the defendant to the offense. See TEX. CODE

CRIM. PROC. ANN. art. 38.14.

The test to apply in determining sufficiency of the corroboration is to

eliminate from consideration the testimony of the accomplice witness and then

examine the testimony of the other witnesses to ascertain if there is inculpatory

evidence which tends to connect the accused with the commission of the

offense. Cruz v. State, 690 S.W.2d 246, 250 (Tex. Crim. App. 1985). This test does

3 The forensic examiner with the DNA casework unit at the FBI Laboratory testified that the mitochondrial DNA analysis of one of the hairs extracted from the green mask revealed the sequence obtained from the hair was the same as that obtained from Abrom. Thus, Abrom could not be excluded as a possible contributor to that hair. In addition, she established that no more than 48.93 percent of African Americans would also be expected to match the small area of mitochondrial DNA obtained from the hair. Appellant could not be included or excluded as a match to the hair. –15– not require, however, that the corroboration directly link the defendant with the

crime or that it be sufficient in itself to establish guilt. Richardson v. State, 700

S.W.2d 591, 594 (Tex. Crim .App. 1985); Davis v. State, 68 S.W.3d 273, 281 (Tex.

App.—Dallas 2002, pet. ref’d). “Instead, any independent evidence verifying the

accomplice’s version as opposed to the defendant’s version is corroborative, even if

it only relates to a mere detail as opposed to a substantive connection between the

defendant and the offense.” Davis, 68 S.W.3d at 281. Furthermore, while presence

alone is insufficient to corroborate an accomplice’s testimony, presence coupled

with other suspicious circumstances may constitute sufficient corroboration. Id. at

281–82 (citing Trevino v. State, 991 S.W.2d 849, 851 (Tex. Crim. App. 1999)).

The surveillance videos from the restaurant showed that five men arrived at

the restaurant in a Mercedes that had an ICN number on its windshield. One man

remained in the vehicle, after entering the restaurant and buying a soft drink, while

the other four entered the restaurant carrying firearms. The murder occurred when

a man wearing a green mask approached Harp, as Harp walked with a gun pointed

at his back and his hands in the air, and shot him. The men then ran back to the

Mercedes and left the scene.

The question presented at trial was whether appellant was one of the men

depicted in the surveillance videos and the man who shot Harp. To corroborate

Abrom’s testimony concerning what transpired the day of the murder and to

appellant’s involvement, the State presented independent evidence through

–16– surveillance videos, Moore’s Instagram posting on the day of the murder, and the

testimony of Detective Serra and Officer Gronau that the vehicle involved in the

offense was a silver Mercedes belonging to Curtis’s girlfriend and that a black face

mask, a green Ninja Turtle mask, and an identification card bearing the name of Eric

Curtis were recovered from the vehicle on the evening of the offense after Officer

Gronau and his partner conducted a traffic stop. Through phones and phone call

records, the State established appellant and Abrom had been in contact with Curtis

the morning of the offense, thus connecting them to Curtis and the Mercedes.

Detective Serra recovered a flip phone from the parking lot of Café Delicious.

The surveillance video of the parking lot shows the phone appeared at the scene

some time after the Mercedes arrived and before it left and that the phone was located

in between the spot where the Mercedes had been parked and another vehicle. The

phone was on the driver’s side of the Mercedes and no one else entered the space

between the vehicles during the commission of the offense. A search of the flip

phone tied the phone to appellant as it had connected to phone numbers belonging

to appellant’s mother and appellant’s girlfriend and contained text messages that

identified the owner of the phone as Carrendius and K.D. Appellant’s jail book-in

records, which were admitted into evidence, further confirmed the phone number

associated with appellant’s mother. In addition, the evidence showed Curtis’s phone

called the flip phone about an hour after the murder occurred, corroborating Abrom’s

testimony appellant lost his phone the day of the murder, they searched for same,

–17– and Curtis called the phone in an effort to locate same. In addition, the evidence

showed that during appellant’s interview with Detective Serra he gave the detective

his mother’s phone number, which matched a number in the flip phone. Appellant

did not deny the phone was his and insisted that he does not allow anyone else to use

his phones and that he maintains sole possession of same. The evidence further

established appellant had a different phone with him when he was arrested and the

data extraction from that phone showed it as activated the day after the murder and

the day after the flip phone was left at the crime scene.

The surveillance video from inside the restaurant showed the individual who

shot Harp wore a green mask. The surveillance video of the parking lot showed the

person wearing the green mask exited the vehicle from the driver’s seat and when

he returned, he got into the back seat behind the driver. Thus, the shooter was always

on the side of the vehicle where appellant’s flip phone was found. The video

surveillance further showed the only other individual exiting and entering the vehicle

from the driver’s side of the car was the individual identified as Moore and he was

not one of the individuals who went inside the restaurant when Harp was shot and

killed. The surveillance video further showed the face of the individual identified

as Moore as he entered the restaurant to “scope it out” and that individual was not

appellant.

The State also presented evidence appellant admitted that he made money

gambling and the State established through a cook from the restaurant that Harp

–18– allowed drug sales and gambling at the restaurant because Harp needed money to

pay bills. This evidence tied appellant to the restaurant and corroborated Abrom’s

testimony appellant wore a mask to hide his identify because people at the restaurant

knew him.

Moreover, the surveillance video of the parking lot corroborated Abrom’s

account of where the individuals were located in the vehicle and who went into the

restaurant.

After eliminating from consideration Abrom’s testimony, and considering the

surveillance videos; information Detective Serra was able to extract from the flip

phone that was retrieved from the crime scene and confirmed by appellant’s jail

book-in records, tying the phone to appellant; the extraction of the cell phone

appellant had with him when he was arrested, which had been activated the day after

the murder and contained a video of Curtis’s candlelight vigil; appellant’s interview

with Detective Serra; testimony concerning law enforcement’s investigation of the

offense; and the Instagram video posted on Moore’s account, we conclude the non-

corroborating witness evidence tended to connect appellant with the commission of

the offense and verified Abrom’s version of the events that occurred the day of the

murder. Because sufficient evidence corroborated Abrom’s testimony appellant was

involved in the robbery and murder of Harp, we overrule appellant’s first issue.

–19– II. Extraneous-Offense Evidence

In his second and third issues, appellant asserts the trial court erred in allowing

the State to present evidence of an extraneous offense that occurred the day before

the offense at issue here because it was not relevant or, if relevant, it was unduly

prejudicial. See TEX. R. EVID. 404(b) (evidence of an extraneous offense may be

admitted if relevant apart from tendency to prove the character of a person in order

to show person acted in conformity therewith), 403 (evidence that is otherwise

relevant may be excluded “if its probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.”).

In his sixth issue, appellant asserts the trial court erred in denying his request to strike

from the record any evidence of the extraneous offense that the State introduced

through Sergeant Casey Torrey because the State failed to subsequently

demonstrate, as it indicated it would, through Detective Serra, the relevance of same.

The night before Harp was murdered, Sergeant Torrey of the Dallas City

Marshal’s Office, while in a marked squad car, attempted to conduct a traffic stop

of appellant’s black Cadillac XTS in what was considered to be a high-drug-traffic

area after he observed the left front headlight to be out, and appellant and another

individual reportedly abandoned the vehicle and fled on foot, leaving behind three

cell phones and a debit card bearing appellant’s name. The officer ran the vehicle’s

license plate and found the vehicle was registered to appellant.

–20– The trial court held a hearing before swearing in the jury during which the

State informed the court of its intent to introduce evidence of this extraneous offense

of evading arrest or detention for the purpose of establishing identity and to

corroborate Abrom’s testimony that appellant drove a black Cadillac and had fled

from the law a day or two before Harp was murdered. Appellant objected to the

introduction of this evidence on the grounds of relevance and unfair prejudice. The

trial court overruled appellant’s objections and indicated that it would “allow

testimony due to corroboration of accomplice testimony.” When the State sought to

introduce evidence of the extraneous offense during its examination of Sergeant

Torrey, appellant renewed his relevance objection. In response, the State indicated

that it would establish the relevancy of the evidence through Detective Serra, who

had not yet testified. The trial court again overrule appellant’s objection. After

Detective Serra testified, appellant moved to strike the evidence of the extraneous

offense urging the State had failed to establish the relevance of same through

Detective Serra as promised. The trial court denied appellant’s motion to strike.

We review a trial court’s decision to admit extraneous offense evidence under

an abuse of discretion standard. Prible v. State, 175 S.W.3d 724, 731 (Tex. Crim.

App. 2005). A court abuses its discretion when its decision is so clearly wrong that

it lies beyond the zone within which reasonable persons might disagree. Rachal v.

State, 917 S.W.2d 799, 807 (Tex. Crim. App. 1996).

–21– Rule 404(b) of the Texas Rules of Evidence prohibits admitting extraneous

offense evidence to prove a defendant acted in conformity with his character on a

given occasion. TEX. R. EVID. 404(b). Evidence of extraneous offenses, however,

may be admitted to show “motive, opportunity, intent, plan, knowledge, identity,

absence of mistake, or lack of accident.” Id. And evidence of extraneous acts may

also be admitted to rebut defensive theories. Lane v. State, 933 S.W.2d 504, 519

(Tex. Crim. App. 1996).

When faced with an objection under rule 404(b), the proponent of the

evidence must demonstrate to the trial court that the evidence has relevance apart

from its value to show character conformity. Santellan v. State, 939 S.W.2d 155,

168 (Tex. Crim. App. 1997). Evidence is relevant if it has “any tendency to make

the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” TEX. R.

EVID. 401. We will find a trial court’s ruling on the admissibility of evidence to be

reversible error only where the court abused its discretion and appellant has been

harmed. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); see

also TEX. R. APP. P. 44.2(b).

To convict appellant of capital murder as charged by the indictment, the State

had to prove, and the jury had to find he intentionally committed the murder in the

course of committing or attempting to commit a robbery. PENAL § 19.03(a)(2).

When identity is an issue in the case, an extraneous offense may be admissible to

–22– show identity. Lane, 933 S.W.2d at 519; Carter v. State, 145 S.W.3d 702, 709 (Tex.

App.—Dallas 2004, pet. ref’d). In order to be admissible, a two-part test must be

satisfied. First, identity must be a contested issue in the case, and second, something

unique must exist that connects the extraneous offense to the charged offense—some

distinguish characteristic common to both the extraneous offense and the offense

charged. Siqueiros v. State, 685 S.W.2d 68, 71 (Tex. Crim. App. 1985). A defense

strategy aimed at challenging the State’s proof of identity raises the issue of identity.

Id.

In this case, while identity was a contested issue, the extraneous offense was

completely different from the offense charged and, thus, did not satisfy the second

prong of the test for the admissibility of extraneous offense evidence. We should

not engraft exceptions to rule 404 that would allow extraneous offenses to be

admitted when identity is an issue absent a direct connection between the charged

and the extraneous offense. Carter, 145 S.W.3d at 710. As a result, we conclude

the evidence was not properly admitted under rule 404(b) to prove identity or to

corroborate Abrom’s identification of appellant as being involved in the charged

offense and the trial court abused its discretion by admitting same.

Having determined that the evidence of the extraneous offense was

erroneously admitted, we must now decide whether the admission of this evidence

was so harmful to appellant as to require a new trial. Here, the complained of error

is not of constitutional dimension. Id. “Any [non-constitutional] error, defect,

–23– irregularity, or variance [in a criminal case] that does not affect substantial rights

must be disregarded.” TEX. R. APP. P. 44.2(b). Thus, we must disregard the error if

it did not affect appellant’s substantial rights. Id. “A substantial right is affected

when the error had a substantial and injurious effect or influence in determining the

jury’s verdict.” Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).

However, “[a] criminal conviction should not be overturned for non-constitutional

error if the appellate court, after examining the record as a whole, has fair assurance

that the error did not influence the jury, or had but a slight effect.” Id.

In assessing the likelihood that the jury’s decision was adversely affected by

the error, we consider the entire record, including any testimony or physical evidence

admitted for the jury’s consideration, the nature of the evidence supporting the

verdict, the character of the alleged error, and how it might be considered in

connection with other evidence in the case. Id. In addition, the weight of evidence

of the defendant’s guilt is also relevant in conducting the harm analysis under rule

44.2(b). Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); Motilla v.

State, 78 S.W.3d 352, 356–57 (Tex. Crim. App. 2002). And we may consider the

closing statements and voir dire, jury instructions, the State’s theory, any defensive

theories, and whether the State emphasized the alleged error. Motilla, 78 S.W.3d at

355–56; Morales, 32 S.W.3d at 867.

With respect to the magnitude of the harm resulting from the erroneous

admission of the complained of evidence, appellant does not identify any specific

–24– harm that resulted from Sergeant Torrey’s testimony about appellant evading arrest

the evening prior to the murder of Harp, rather he simply states, “The error was such

that it denied Appellant due process a fair trial and was harmful as it placed evidence

of bad character before the jury in a way that was wholly impermissible with the

intent to prejudice Appellant before the jury which was to deny him a fair trial.”

As we indicated in resolving appellant’s first issue, the State introduced

evidence corroborating Abrom’s testimony with respect to the charged offense and

the evidence of appellant’s guilt on the capital murder charge was substantial. In

addition to the substantial evidence of appellant’s guilt of the capital murder, the

record shows that the testimony regarding the extraneous offense consumed a minute

portion of the State’s case and neither side mentioned the extraneous offense during

closing arguments. See, e.g., Smith v. State, No. 06-21-00087-CR, 2022 WL

2027006, at *9 (Tex. App.—Texarkana June 7, 2022, no pet.) (mem. op., not

designated for publication) (holding the admission of the extraneous-offense

evidence was harmless because, among other reasons, the extraneous offense was

“barely a part of the trial,” and the State did not mention it during closing arguments).

We conclude the admission of the extraneous offense evidence likely did not

influence the jury or had but a slight effect. Accordingly, we overrule appellant’s

second, third, and sixth issues.

–25– III. Jail Records

In his fourth issue, appellant argues the trial court erred in overruling his

objection to State Exhibits 168, 169, and 170. State Exhibit 168 is a copy of

appellant’s AIS (Adult Identification System) book-in dated October 1, 2019. The

exhibit, as introduced into evidence, contained basic information such as appellant’s

date of birth, height, weight, last known address, and emergency contact and phone

number. State Exhibits 169 and 170 were spread sheets of jail phone call records

showing the date, time, and duration of calls associated with appellant’s personal

identification number and the phone number identified on the AIS as belonging to

appellant’s emergency contact, his mother, and calls to the phone number associated

with appellant’s girlfriend. The calls were placed between October 7, 2019, and

November 5, 2019. Appellant objected to these exhibits on the grounds that they

reminded the jury that he was incarcerated for about a one-month period.

On appeal, appellant contends this evidence was prejudicial and inadmissible

under Texas Rule of Evidence 403. Preservation of error is governed by Rule 33.1

of the Texas Rules of Appellate Procedure, which provides that, to preserve error, a

complaint must be “made to the trial court by a timely request, objection, or motion

that ... state[s] the grounds for the ruling that the complaining party sought from the

trial court with sufficient specificity to make the trial court aware of the complaint,

unless the specific grounds were apparent from the context.” TEX. R. APP. P.

33.1(a)(1)(A). Regarding its specificity, the objection must simply be clear enough

–26– to provide the judge and the opposing party an opportunity to address and, if

necessary, correct the purported error. Ford v. State, 305 S.W.3d 530, 533 (Tex.

Crim. App. 2009). No “magic words” are required. Id. An objection is considered

in the context in which the complaint was made and the parties’ shared

understanding of the complaint at that time. Lankston v. State, 827 S.W.2d 907, 911

(Tex. Crim. App. 1992).

Assuming, without deciding, appellant’s objection at trial was sufficient to

preserve his rule 403 complaint, we conclude the trial court did not abuse its

discretion in admitting the complained of exhibits.

Rule 403 states that evidence that is relevant may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice. See TEX. R.

EVID. 403. “Unfair prejudice refers not to an adverse or detrimental effect of

evidence but to an undue tendency to suggest a decision on an improper basis,

commonly an emotional one.” Casey v. State, 215 S.W.3d 870, 883 (Tex. Crim.

App. 2007).

The State introduced State Exhibits 168, 169 and 170 through Raul Obregon,

a criminal investigator for the Dallas County District Attorney’s office, who testified

that as part of his duties as an investigator he pulls jail calls. He testified he pulled

the jail calls associated with appellant and he identified the phone numbers on State

Exhibits 169 and 170 as belonging to appellant’s mother and girlfriend. Appellant’s

counsel did not cross examine Obregon. Appellant contends that this evidence “was

–27– clearly calculated to inflame the minds of the jury that it would be impossible to

remove the harmful impression from their minds that it denied appellant’s right to a

fair trial.”

Prior to the offer of State Exhibits 168, 169 and 170, Officer Kennedy testified

that he arrested appellant on the morning of October 1, 2019, the date listed on the

AIS sheet. Officer Kennedy testified that he transported appellant to headquarters.

From this testimony, the jury could have inferred appellant went to jail at that time.

The jail call logs identify a relatively short period of time during which appellant

was making calls from the jail. We conclude appellant he has failed to establish the

introduction of this evidence had an undue tendency to suggest a decision on an

improper basis. We overrule appellant’s fourth issue.

IV. Instagram Video

In his fifth issue, appellant urges the trial court erred when it allowed the State

to present the eight-second video posted on Moore’s Instagram account on the day

of the offense. Appellant contends that doing so deprived him of his right to confront

the witness and claims the video was not relevant to this case. The specific exhibits

about which appellant complains are State Exhibits 190, 203, and 204, which were

introduced during the State’s examination of Detective Serra. Appellant objected to

this evidence as hearsay and violative of the confrontation clause.

State Exhibit 190, the video from Moore’s Instagram account, shows an

individual driving a vehicle with a Mercedes Benz logo on the steering wheel and a

–28– location number 84-10 on the windshield matching the CIN number shown on the

suspect vehicle in the surveillance video. The State urged that this CIN number

kicked off the investigation that ultimately led to the arrest of appellant. The State

indicated that it was offering this evidence to corroborate Abrom’s testimony about

the group traveling in a Mercedes belonging to Curtis’ girlfriend and his

identification of Moore as the getaway driver and for the additional purpose of that

the clip references the unnamed individual known as “Third.” The State offered

Exhibits 203 and 204, Meta Platforms Business Records for the Instagram account,

to establish the date the video was posted and to identify Moore as the individual

associated with the account and the post.

The Confrontation Clause guarantees a criminal defendant the right to be

confronted with the witnesses against him. U.S. CONST. amend. VI; Garcia v. State,

149 S.W.3d 135, 140 (Tex. Crim. App. 2004). The Confrontation Clause prohibits

the admission of testimonial hearsay against a defendant unless the declarant was

unavailable, and the defendant had a prior opportunity to cross-examine the

declarant. Crawford v. Washington, 541 U.S. 31, 68 (2004); De La Paz v. State, 273

S.W.3d 671, 680 (Tex. Crim. App. 2008). “[A] hearsay statement is testimonial

when the surrounding circumstances objectively indicate that the primary reason the

statement was made was to establish or prove past events potentially relevant to later

criminal prosecution.” Walter v. State, 581 S.W.3d 957, 981 (Tex. App.—Eastland

2019, pet. ref’d). Hearsay is a statement, other than one made by the declarant while

–29– testifying at trial, offered in evidence to prove the truth of the matter asserted. TEX.

R. EVID. 801(d). A statement is an oral or written expression, or nonverbal conduct

that a person intended as a substitute for verbal expression. TEX. R. EVID. 801(a).

The video in State Exhibit 190 is eight seconds in length, and some discernible

voices are detected in the background. The State did not offer the video to prove the

truth of any statements that might have been discernible. The State offered the video

to show that Moore was behind the wheel of the Mercedes with his accomplices on

the date of the murder corroborating Abrom’s testimony on the matter. Therefore,

the hearsay rule did not preclude its admission. Accordingly, the admission of

Exhibit 190 did not violate the Confrontation Clause. With respect to Exhibits 203

and 204, appellant’s complaints urging the date and time the video was posted does

not conclusively establish that the video itself was recorded on that date or that

Moore actually posted the video, go to the weight of same, and not their

admissibility. We overrule appellant’s sixth issue.

V. Jury Argument

In his seventh issue, appellant contends the trial court erred in overruling his

objection to the prosecutor’s jury argument that appellant was not going to own up

and admit it. Appellant contends that this statement amounted to a comment on

appellant’s failure to testify that impeded his Fifth Amendment right. We disagree.

We review a trial court’s ruling on an objection to jury argument for an abuse

of discretion. Milton v. State, 572 S.W.3d 234, 241 (Tex. Crim. App. 2019). A trial

–30– court abuses its discretion when its ruling falls outside the zone of reasonable

disagreement. Gonzalez v. State, 544 S.W.3d 363, 370 (Tex. Crim. App. 2018).

There are four proper areas of jury argument: (1) summation of the evidence;

(2) a reasonable deduction drawn from that evidence; (3) an answer to opposing

counsel’s argument; and (4) a plea for law enforcement. See Milton, 572 S.W.3d at

239. A comment on a defendant’s failure to testify violates both the state and federal

constitutions as well as Texas statutory law. See U.S. Const. amend. V; TEX. CONST.

art. I, § 10; CODE CRIM. PROC. art. 38.08; Randolph v. State, 353 S.W.3d 887, 891

(Tex. Crim. App. 2011). To rise to the level of such violation, the comment must

clearly refer to the accused’s failure to testify, and it is not sufficient if it might be

construed as an implied or indirect allusion. Canales v. State, 98 S.W.3d 690, 695

(Tex. Crim. App. 2003). The test is whether the language used was manifestly

intended or was of such character that the jury would necessarily and naturally take

it as a comment on the defendant’s failure to testify. Id.

The comment appellant refers to was made by the prosecutor toward the end

of the State’s opening closing argument and while he discussed Detective Serra’s

interview of appellant:

Detective Serra, who did a fantastic job, I believe, interviewing [appellant], he was never going to admit it. Because it was days after, he knew what was coming, and he knew - -

Defense counsel interrupted at that time stating, “Your Honor, I am going to object.

It impedes upon the defendant’s Fifth Amendment right not to testify.” The trial

–31– court overruled the objection. The prosecutor then continued,

He knew what was coming, because he left his phone at the scene. If his story make[s] sense. Did he own up to anything, the gun in the house. He blamed it on the dog. Did he say his nickname? He does not own anything and he is not going to give anything up to Detective Serra, no matter how long, even if they were still in there sitting today.

The comment about which appellant complains clearly referred to appellant’s

unwillingness to cooperate and provide information to Detective Serra. It was not a

comment on his failure to testify at trial. The prosecutor’s comment was not of such

a character that the jury would necessarily and naturally take it as a comment on

appellant’s failure to testify. Accordingly, the trial court did not abuse its discretion

in overruling appellant’s Fifth Amendment objection. We overrule appellant’s

seventh issue.

VI. Jury Charge

A. Lesser Included Offense

In his eighth issue, appellant asserts the trial court erred in denying his request

to instruct the jury on the lesser-included offense of felony murder. Appellant

contends he was entitled to the instruction because a jury could have found he did

not have the specific intent to shoot and kill Harp.

To determine whether a defendant is entitled to an instruction on a lesser-

included offense, a two-step test applies. Hall v. State, 225 S.W.3d 524, 536 (Tex.

Crim. App. 2007). The first step is to determine whether the offense is actually a

lesser-included offense of the offense charged. Id. Felony murder is a lesser-

–32– included offense of capital murder. See Fuentes v. State, 991 S.W.2d 267, 272 (Tex.

Crim. App. 1999); see also PENAL §§ 19.02(b)(3) & 19.03(a)(2). Accordingly, the

first prong of the test is satisfied.

The second step of the test requires that the record contain some evidence that

would permit a jury rationally to find that if the defendant is guilty, he is guilty only

of the lesser-included offense. Hall, 225 S.W.3d at 536. The evidence must

establish the lesser-included offense as “a valid rational alternative to the charged

offense.” Segundo v. State, 270 S.W.3d 79, 91 (Tex. Crim. App. 2008); see also

Rice v. State, 333 S.W.3d 140, 146 (Tex. Crim. App. 2011). We review all of the

evidence presented at trial. Hayward v. State, 158 S.W.3d 476, 478–79 (Tex. Crim.

App. 2005). Anything more than a scintilla of evidence is sufficient to entitle a

defendant to a lesser charge. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim. App.

2011). In determining whether the evidence raises the requested lesser-included

offense, we do not consider the credibility of the evidence or whether it conflicts

with other evidence. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App.

1992).

A person commits capital murder if the person intentionally causes the death

of an individual while in the course of committing or attempting to commit certain

enumerated felonies, in this case robbery. PENAL § 19.03(a)(2); Johnson v. State,

853 S.W.2d 527, 535 (Tex. Crim. App. 1993). A person commits felony murder if

the person:

–33– commits or attempts to commit a felony, other than manslaughter, and in the course of or in furtherance of the commission or attempt, or in immediate flight from the commission or attempt, the person commits or attempts to commit an act clearly dangerous to human life that causes the death of an individual. PENAL § 19.02(b)(3); Murphy v. State, 665 S.W.2d 116, 119 (Tex. Crim. App. 1983).

The difference between capital murder and felony murder is that capital murder

requires the specific intent to kill, and felony murder requires only the intent to

commit the underlying felony. See Fuentes, 991 S.W.2d at 272 (“The distinguishing

element between felony murder and capital murder is the intent to kill.”); Santana v.

State, 714 S.W.2d 1, 9 (Tex. Crim. App. 1986) (“The only difference in the two

offenses is the culpable mental state. In capital murder, there must be an intent to

kill, while in the felony murder, there must only be an intent to commit the

underlying offense, in this case robbery.”); see also Threadgill v. State, 146 S.W.3d

654, 665 (Tex. Crim. App. 2004) (felony murder is an unintentional murder

committed in the course of a felony). As a result, in order for appellant to be entitled

to a felony-murder instruction, the record must contain some evidence that would

permit a rational jury to find appellant intended to commit a robbery but

unintentionally caused Harp’s death by committing an act clearly dangerous to

human life. See Fuentes, 991 S.W.2d at 272; Taylor v. State, No. 05-12-00540-CR,

2013 WL 4081422, at *12 (Tex. App.—Dallas Aug. 13, 2013, pet. ref’d).

During the jury charge conference, appellant urged that a lesser-included

instruction should be given because (unspecified) statements made by the detective

–34– in his interview with appellant and an interpretation of the surveillance video that

shows appellant behind the counter could lead a jury to find appellant did not have

the specific intent to shoot and kill Harp. The trial court denied appellant’s request

noting, “Court is of the opinion that there wasn’t any evidence of the lesser

included, primarily because based on the tape, [appellant] admitted that he did not

know anything about the offense, wasn’t there, so I am going to deny that

request.”

The evidence at trial showed appellant and his accomplices drove to Café

Delicious with the intent to commit a robbery. Appellant and three of his

accomplices entered the restaurant carrying firearms. The surveillance video of

the shooting, along with Abrom’s testimony, showed Harp was walking with both

hands in the air and a gun to his back when Harp was shot point blank. One of the

bullets hit Harp on the left side of his chest and caused his death. These facts

establish appellant acted intentionally when he shot and killed Harp. The evidence

in the record concerning appellant’s intent at the time of the shooting does not

accord with robbery alone. Taylor, 2013 WL 4081422, at *12. Given the evidence

in this case, a rational jury could not have concluded that, at the time of the

shooting, appellant intended only to rob, and not kill, Harp. Accordingly, appellant

has not satisfied the second prong of the Hall test, and the trial court did not err in

denying his request for a jury instruction on the lesser-included offense of felony

murder. We overrule appellant’s eighth issue.

–35– B. Reasonable Doubt

In his final issue, appellant claims the trial court erred in overruling his

objection to the jury charge including what he characterizes as a definition of

reasonable doubt. The complained of language, which was included in the

“Presumptions and Burden of Proof” portion of the jury charge, is as follows:

It is not required that the State prove the defendant’s guilt beyond all possible doubt; it is required that the State’s proof excludes all “reasonable doubt” concerning the defendant’s guilt.

Appellant contends that this phrase is a prohibited definition under Paulson v. State,

28 S.W.3d 570 (Tex. Crim. App. 2000). We disagree.

Appellate review of an alleged error in the jury charge involves two

steps. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). The first step

is to determine if the jury charge was erroneous. Cortez v. State, 469 S.W.3d 593,

598 (Tex. Crim. App. 2015); Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App.

2015). If erroneous, the next step is to determine whether the error caused sufficient

harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App.

2005).

As an initial matter we note that Paulson did not involve the particular

instruction about which appellant complains here. And, in Woods v. State, the Texas

Court of Criminal Appeals considered a charge that included essentially the same

instruction that is at issue here and held it did not violate Paulson because the charge

did not include the definitions criticized by the court in Paulson. Woods v. State,

–36– 152 S.W.3d 105, 115 (Tex. Crim. App. 2004) (considering the instruction, “It is not

required that the prosecution prove guilt beyond all possible doubt; it is required that

the prosecution’s proof excludes all ‘reasonable doubt’ concerning the defendant’s

guilt”); see also Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010)

(reaffirming holding in Woods). This Court has considered this instruction as well

and has held that it does not violate Paulson because it does not define “reasonable

doubt.” See, e.g., Bullock v. State, 673 S.W.3d 758, 767–68 (Tex. App.—Dallas

2023, no pet.); Thomas v. State, No. 05-19-00347-CR, 2020 WL 2988639, at *7

(Tex. App.—Dallas June 4, 2020, pet. ref’d) (mem. op., not designated for

publication); McDaniel v. State, No. 05-15-01086-CR, 2016 WL 7473902, at *6–7

(Tex. App.—Dallas Dec. 29, 2016, pet. ref’d) (mem. op., not designated for

publication); O’Canas v. State, 140 S.W.3d 695, 702 (Tex. App.—Dallas 2003, pet.

ref’d). Accordingly, we conclude that the specific language about which appellant

complains did not define reasonable doubt and thus, its inclusion in the jury charge

is not error. See O’Canas, 140 S.W.3d at 701–02. We overrule appellant’s ninth

issue.

VII. Modification of Judgment

By cross issue, the State urges the sentence listed in the judgment should be

modified to correctly reflect that appellant was sentenced to “life without parole,”

instead of “life.” The record reflects that the judge pronounced appellant’s sentence

as “life without parole,” but the judgment reflects appellant was sentenced to “life.”

–37– A person convicted of a capital felony in a case where the State does not seek the

death penalty shall be imprisoned for life without parole if the person who

committed the offense is eighteen years of age or older. PENAL §§ 12.31(b)(2);

19.03(b). Here, the State did not seek the death penalty, and appellant was thirty-

one years old when he committed the offense. Thus, appellant’s sentence is

imprisonment for life without parole.

This Court has jurisdiction to rectify an error in sentencing. Mizell v.

State, 119 S.W.3d 804, 805–806 (Tex. Crim. App. 2003). And Texas Rule of

Appellate Procedure 43.2 allows this Court to modify the trial court’s judgment and

affirm it as modified. TEX. R. APP. P. 43.2. We sustain the State’s cross issue and

modify the judgment to reflect a sentence of life imprisonment without parole. TEX.

R. APP. P. 43.2(b); French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992).

CONCLUSION

We affirm the judgment as modified.

/Nancy Kennedy/ NANCY KENNEDY Do Not Publish JUSTICE Tex. R. App. P. 47

221119F.U05

–38– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

CARRENDIUS WALKER, On Appeal from the 194th Judicial Appellant District Court, Dallas County, Texas Trial Court Cause No. F19-76545. No. 05-22-01119-CR V. Opinion delivered by Justice Kennedy. Justices Garcia and THE STATE OF TEXAS, Appellee Breedlove participating.

Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED as follows:

to reflect appellant’s sentence is life imprisonment without parole.

As REFORMED, the judgment is AFFIRMED.

Judgment entered this 27th day of March, 2024.

–39–