In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00027-CR __________________
CHRISTOPHER BLAKE PAULETTE, Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 1A District Court Tyler County, Texas Trial Cause No. 13,498 __________________________________________________________________
MEMORANDUM OPINION
A jury found Christopher Blake Paulette guilty of the capital murder of Susan
Morris, and the trial court sentenced him to life imprisonment without the possibility
of parole. See Tex. Penal Code Ann. § 19.03(a)(2). In three issues, Paulette
challenges the trial court’s admission of certain evidence. We affirm.
1 Evidence at Trial
Testimony of Byron Stowe
Byron Stowe, a dispatcher with the Tyler County Sheriff’s Office, testified
that early on December 21, 2018, he received a 911 call about an incident in Hillister.
State’s Exhibit 4, which Stowe identified as a recording of the 911 call and is
approximately three minutes long, was admitted into evidence over defense
counsel’s objection. The recording of the call was played for the jury and Stowe
testified that the call ended when the caller hung up, despite Stowe asking him to
stay on the line. Stowe testified that Brandon Wood, who was identified on the
recording as the caller, was deceased at the time of trial.
Recording of the 911 Call
On the recording of the 911 call, Wood stated he was calling to report “a 911
emergency” at “Pedro’s” house in Hillister. Wood was breathing heavily and stated
he did not know the address, he frantically tried to describe directions to the house,
and the dispatcher told him to “calm down a little bit[.]” Wood reported that Pedro
had a young man at his house “ziptied up[,]” Pedro had a gun in his hand, and Wood
“had to get out of there as soon as [he] could.” Frustrated as he tried to give general
directions to the house, he told dispatch “y’all have already dealt with this man not
too long ago” with Pedro’s “girlfriend’s overdose” at the house. Wood reluctantly
identified himself to dispatch, admitted he had warrants, and told dispatch they
2 needed to “please get there man because he’s got him ziptied[.]” The dispatcher tried
to calm Wood down and told him he was trying to get a good location from him so
someone could respond. Wood explained he “had to act like [he] was okay with it”
and go along with it because Pedro had a gun and was “serious.” Wood said he could
not get to the man to untie him because he did not want to have to fight Pedro for
the gun. Dispatch informed Wood that someone was on their way out to the location.
The recording ended with the dispatcher telling Wood he was going to “keep [him]
on the line for a little bit.”
Testimony of Deputy Joshua Robison
Deputy Joshua Robison with the Tyler County Sheriff’s Office testified that
he was training with another deputy on December 21, 2018, and they responded to
a 911 call in Hillister relating to an “unlawful restraint offense.” According to
Deputy Robison, he and Deputy Cloyd approached the house, knocked on the door,
and announced “sheriff’s office.” Deputy Robison testified that, after about a minute,
Robert Sims came to the door with his wrists securely bound in a zip tie and a broken
zip tie was around one of his ankles. Deputy Robison spoke with Sims and learned
that he had used a lighter to break the zip tie on his ankles, and Deputy Robison
broke the zip tie on Sims’s wrists with a knife. Deputy Robison testified that he
observed the burn mark on the ankle zip tie, it appeared that Sims had burned the zip
tie to escape it, and Sims seemed in shock and did not seem to know what was going
3 on or where he was. The body camera recording from Deputy Robison was admitted
into evidence and played for the jury.
Testimony of Officer Haiden Hughes
Officer Haiden Hughes, an officer with the Silsbee Police Department who
was working for the Tyler County Sheriff’s Office at the time of the murder, testified
that he responded to the hostage call involving an armed male, and Officer Hughes
arrived at the scene less than a minute after Deputies Cloyd and Robison. According
to Officer Hughes, he covered the back corner of the house where there was a door
while the deputies went to another door on the east side.
Once he learned that a man came out of the house zip tied, Officer Hughes
entered the house with his weapon drawn shortly after the deputies had entered and
cleared the south end of the home. Officer Hughes testified that he looked down the
hallway into a dimly lit room and saw a man, later identified as Paulette who also
goes by the alias “Pedro,” sitting in a chair with a black object in his hands.
Concerned that the man had a weapon, Officer Hughes gave verbal commands for
the man to put his hands up and put his hands on his head. Officer Hughes testified
that although Paulette was hesitant to comply, he stood up from the chair and finally
put his hands on his head. Officer Hughes asked him to lie down on the floor, and
Paulette was restrained and handcuffed. Officer Hughes testified that Paulette said
4 something like, “I didn’t mean to. I didn’t do it[,]” and Officer Hughes transported
him to the jail.
Officer Hughes testified that when he arrived at the jail sally port, he exited
the patrol vehicle, walked around to open the door for Paulette to exit the vehicle,
and he noticed Paulette had pulled his pants down “below his rear[,]” a billfold was
in the backseat of the car, and “stuff was strewed everywhere[.]” Officer Hughes
placed the items back in the billfold and took Paulette into the jail.
Officer Hughes testified that the following day he opened the back seat of his
patrol car to get his jacket and found a debit card, bent in half, on the opposite side
of the seat from where Paulette had been sitting. Officer Hughes put it in his pocket
and then gave it to Brian Seales to put in the property room. At trial, Officer Hughes
identified the debit card he found, which was stored in a bag labeled with his name
and date, time, and location of recovery, and it was admitted into evidence. Officer
Hughes testified that the name on the debit card was “Susan R. Morris,” and the last
four digits of the card number were “3324.”
Officer Hughes testified that after he transported Paulette to the jail he
returned to the residence where Paulette had been arrested to investigate with a
search warrant. Officer Hughes described the house as in “[s]hambles, dope
everywhere[,]” with narcotic paraphernalia, residue, needles, firearms, and spent
shell casings scattered in the house. There were materials for making a homemade
5 firearm silencer and there were also multiple homemade suppressors or silencers in
the house. In the location where Paulette had stood up when Officer Hughes had
given verbal commands, Officer Hughes located a loaded black semiautomatic .22
pistol with a black homemade suppressor attached to it. According to Officer
Hughes, he was looking anywhere a firearm or drug paraphernalia could be hidden,
and when walking through the house he noticed the entrance to the attic ajar and the
attic light was on.
There was not a ladder to the attic and Officer Hughes placed his body camera
up in the attic and then climbed up the AC and water heater to enter the attic. Officer
Hughes testified that he then noticed blood and a body. A search of a Cadillac sedan
at the scene resulted in the recovery of paraphernalia and a new, still in the box,
hand-motorized auger used for digging holes in the ground. The recording of the
body camera during Officer Hughes’s search of the attic was admitted into evidence
and played for the jury.
The recordings from his body camera at the time of Paulette’s arrest and from
the back of his patrol car when he transported Paulette were admitted into evidence
at trial and published for the jury. When the recording from the patrol car from
Officer Hughes’s transport of Paulette to the jail was played at trial, Officer Hughes
testified that he saw Paulette in the video throw what appeared to be the debit card
across his body with his right hand and the item flew to the left side of the vehicle.
6 Testimony of Scott Wheat
Scott Wheat, Assistant Fire Marshall with Beaumont Fire Rescue, testified
that he was called out to the scene because there was suspected fentanyl in the
residence, and his team was the closest regional hazardous materials response team
with proper equipment to make entry. According to Wheat, the response team was
asked to go into the attic to retrieve the deceased victim because of the possibility of
fentanyl in the attic. Wheat testified that the response team cut a hole in the side of
the house to remove the body. Wheat was the first of his team to enter the attic and
he took photographs of the scene which he testified he was trained to do as an arson
investigator.
Wheat testified that, once in the attic, he observed a large pile of debris and a
female victim lying on her back, partially covered with various items, with her feet
facing him. Wheat testified they collected the items in contact with the body,
removed pink insulation from the victim’s face, and then removed the body from the
attic. According to Wheat, the victim’s hands and feet were bound with plastic zip
ties, and her hands were zip tied to a two-by-four support that ran from the floor of
the attic to the ceiling. Photographs taken by Wheat of the scene were admitted into
evidence and published to the jury. According to Wheat, there were plastic ribbons
like “Easter grass material[]” near the body and the ribbons appear in the
photographs of the body.
7 Testimony of Officer Casey Whitworth
Officer Casey Whitworth with the Tyler County Sheriff’s Office testified that
he responded to the scene after he learned that a person had been found there tied up
and Paulette had been arrested with a weapon on him that morning. Officer
Whitworth testified that he knew Paulette was a convicted felon and there were
possibly more weapons in the house, so he requested “to hold the scene” while a
search warrant was prepared.
Officer Whitworth testified he later learned that there was a body in the attic,
and he collected evidence on December 21, 2018. According to Officer Whitworth,
law enforcement took photographs of a pair of black Bates tactical boots on the floor
in the master bedroom that in the dim lighting appeared to have paint or mud on
them. Officer Whitworth testified that several days later, on a subsequent search
warrant, the boots were collected and sealed as evidence. The boots were admitted
into evidence as State’s Exhibit 6a. Officer Whitworth testified that on the bottom
of the heel of the boot there appeared to be stringy, plastic ribbons that appeared to
be the same as those photographed with the body and resembled the pink insulation
in the attic. Officer Whitworth testified that a presumptive blood test kit was
performed on what appeared to be blood on the boots and that a heel print on the left
side of the victim’s face had “little round dots that matched what that boot would
have caused.”
8 According to Officer Whitworth, the boots were collected a few days after
Paulette had been arrested. Officer Whitworth testified that law enforcement caught
someone on the property that day. Officer Whitworth acknowledged that, because
of the hole that had been cut on the top side of the house, the scene could not really
be secured, and the evidence was not secured for the days between Paulette’s arrest
and when the boots were collected on December 21, 2018. Officer Whitworth
testified that when Paulette was arrested, he was wearing tan tactical boots that did
not have insulation or plastic ribbons on the bottom or blood stains.
Testimony of Martha Dawson
Martha Dawson, Precinct 2 Justice of the Peace for Tyler County at the time
of the murder, was called to pronounce Morris deceased. Dawson testified she also
ordered an autopsy.
Testimony of Detective Brian Seales
Detective Brian Seales with the Tyler County Sheriff’s Office testified that he
worked as an investigator on the case. Detective Seales identified the black boots
and a pair of pants recovered from Paulette’s residence and testified that he tested
an apparent stain on the bottom of one of the boots and from the pants to determine
if it was human blood. Detective Seales also testified they collected a stepladder
from the residence and tested it to determine whether it had any blood on it.
Detective Seales also submitted a search warrant for Morris’s cell phone provider to
9 obtain the geolocation of her phone. According to Detective Seales, the geolocation
data retrieved by AT&T revealed that Morris’s cell phone location did not register
anywhere near Morris’s residence in Onalaska between December 14 and December
20, 2018, and that Morris’s cell phone location registered near Paulette’s residence
on December 14th, 15th, 17th, 18th, and 20th.
Detective Seales testified that the black boots were not collected until
December 28, 2018, seven days after Paulette was arrested. When asked who was in
the house during that seven-day period, Detective Seales testified that a female
subject admitted to going into the residence along with another male subject to
retrieve some of her items and they were in the residence the day that the boots were
collected.
Detective Seales testified that he had heard that Jacob Cooke had been a prior
victim of Paulette’s and interviewed Cooke in January of 2019. Detective Seales
photographed Cooke’s injuries that he reported were caused by Paulette at Paulette’s
residence, and those photographs were admitted at trial and published to the jury.
According to Detective Seales, the photographs depicted scars on his arm and chest
from a razor blade, an injury to his left leg, and an incision mark from his right knee.
Testimony of Dr. Tommy Brown
Dr. Tommy Brown, a forensic pathologist, testified he performed the autopsy
on Morris. Dr. Brown’s autopsy report was admitted into evidence. Dr. Brown
10 testified that Morris suffered “extreme battering of the face[]” consistent with blunt
force trauma, had abrasions to her forehead and scalp, abrasions and contusions to
her nose and both cheeks, and a lacerated ear. Dr. Brown testified that as for Morris’s
eyes she had “hematomas of the orbits bilaterally.” According to Dr. Brown she had
a larger laceration to the inside of her upper lip, her right front central upper incisor
tooth had been knocked out, and she had lacerations, abrasions, and contusions in
the chin area. Dr. Brown testified that in his opinion the bruising to her face and
down her back were from injuries she would have sustained when alive and that the
large area of bruising to her back was caused by multiple blows. She also had
bruising to her chest area. Dr. Brown testified that Morris suffered burn injuries to
her legs. Dr. Brown testified that there were two plastic zip ties around her neck, and
underneath the zip ties were contusions, abrasions, and bruising. There was a plastic
zip tie tight around her ankles and a laceration to one of her hands. Her hyoid bone,
the bone at the top of the neck that holds muscles in place when swallowing, was
broken and her thyroid cartilage was crushed. Morris also suffered a subdural
hematoma, which the doctor testified would have been caused by her being hit in the
head with a lot of force when she was still alive because there was hemorrhage. Dr.
Brown concluded that Morris’s death was caused by severe multiple blunt force
trauma to the head, face, and neck.
11 The toxicology report from the autopsy revealed that Morris had very small,
not life-threatening amounts of alprazolam (for anxiety and depression), morphine
(pain reliever), fluoxetine and norfluoxetine (for anxiety and depression),
hydroxyzine (an antihistamine), and amphetamine and methamphetamine.
According to Dr. Brown, the presence of these drugs had nothing to do with Morris’s
death.
Testimony of Joseph Garza
Joseph Garza testified that Morris “was like a mother to [him]” and took him
in and cared for him. According to Garza, he, his girlfriend, and his girlfriend’s child
lived with Morris in Onalaska for about a year and, in exchange for letting them live
there, Garza would do jobs around the house and take care of Morris’s dog. Garza
testified that on Friday, December 14, 2018, he observed a tattooed white male
whom he had never met arrive at Morris’s house in a dark Cadillac. The white male,
who referred to himself as “Pedro” and whom Garza identified at trial as Paulette,
exited the Cadillac and spoke to Garza for fifteen or twenty minutes. Garza testified
that he believed that Morris knew Paulette through a friend or her nephew.
According to Garza, Morris left with Paulette that day to go to the casino in
Livingston for a couple of hours, but she never returned home.
Garza testified that he became worried and tried to text her at least twenty
times and call her twenty to thirty times, but no one would answer. Garza testified
12 that while she was gone, he received text messages from Morris’s cell phone that he
did not believe were from Morris, telling Garza not to worry if he saw purchases on
her bank account. Garza testified that he thought this was strange because Morris
knew Garza did not have access to her bank accounts.
Garza testified that Paulette returned to Morris’s house without Morris on
December 20, 2018, but he jogged or walked there. According to Garza, Paulette
tried to explain why Morris had not returned, he talked about his weapons, and he
wanted Garza and Tyrek Allison, who was also there, to go throw Paulette’s knife
into the tree in the backyard. Paulette gave Garza a cigarette box and $400 for Garza
to go grocery shopping and do laundry because Garza was unemployed. Garza
testified that Paulette stayed no longer than forty-five minutes and then left by foot.
Garza admitted to using drugs in the past but denied ever using drugs when he lived
with Morris.
Testimony of Tyrek Allison
Tyrek Allison testified that he knew Morris “[p]retty good[]” and lived with
her briefly. Allison testified that it was common for Morris to give him grocery
money and she did not charge him rent to live with her. Allison denied ever using
drugs with Morris or at her house, and he denied ever seeing Morris use drugs.
According to Allison, he was not there the day Morris left, but after she left,
he needed money for utilities and groceries, and he tried to call Morris but she never
13 answered. Allison testified that he tried to call her and request grocery money on
December 19, 2018, and someone answered the phone breathing, but the phone hung
up. He testified he believed it was Morris who answered because she sometimes
answered her phone that way. He testified that “Pedro,” who he identified at trial as
Paulette, called him back and asked what Allison needed. Allison testified that he
told Paulette that he needed to talk to Morris and Paulette said, “She’s busy right
now and she can’t talk.” Allison testified he told Paulette that he needed grocery
money and there was no groceries or toilet paper in the house and Paulette told him
he would “be there tomorrow to bring it.” Allison asked to talk to Morris again and
Paulette said she was busy, tired, and could not talk. Allison continued to try to
contact Morris by texting her and one text he received stated that Pedro was taking
care of her and not to worry about her and that she would be sending Pedro to the
house with money and to get her medication. Allison testified that he had no way of
knowing who sent the text but that was “not the way [Morris] texts.”
Allison testified that the following day Paulette came over and said he parked
his car at Brookshire’s, and he jogged from Brookshire’s to the house. According to
Allison, Paulette seemed like he could not focus, introduced himself to Allison as
“Pedro” and when Allison asked how he got the name Paulette answered that he got
the name in prison. Allison testified that Paulette placed a Bowie knife on the table
and gave Allison $300. Allison testified that Paulette lectured he and Garza that they
14 needed to stop depending on Morris and needed to get their lives together because
they had just graduated. Paulette picked the knife up and asked Garza to go outside
alone with him to talk and Allison stayed inside and watched through a window.
Allison testified that Paulette took Garza to the back of the house and started
throwing the knife at the tree and asking Garza to go get it for him. Allison believed
Paulette was trying to intimidate them. Allison testified that his girlfriend came
downstairs and gave Paulette a ride back to Brookshire’s.
Testimony of Dylan Burson
Dylan Burson testified that he was working at the Boot Barn in Livingston on
December 14, 2018, and he observed a heavily tattooed man, who Burson identified
at trial as Paulette, come into the store acting strange. Burson testified that his
manager asked him to follow the man and help him, and when Burson asked him if
he needed help, he told him he did not. Burson testified that he helped a Jasper police
officer in the boot department when Paulette began talking to the officer about how
he liked the black tactical boots that the officer had on and that he wished he had
enough to buy a new pair because the black tactical boots he had on were too heavy
because they were steel toed. Burson testified that the black tactical boots that
Paulette had on that day looked like State’s Exhibit 6a and were steel toed like State’s
Exhibit 6a.
15 Testimony of Officer Drew Broom
Officer Drew Broom with the Jasper Police Department testified that on
December 14, 2018, he worked as an officer with the Jasper County Sheriff’s office
and was off duty, not in uniform, and shopping at the Boot Barn in Livingston.
Officer Broom testified that a man that he was “100 percent” sure was Paulette was
in the boot department talking to a sales associate about how he preferred to wear
Bates tactical boots because he felt comfortable in them and had been wearing that
style for years. Officer Broom testified that he joined the conversation about boots
and told Paulette that he was a peace officer in Jasper County and Paulette told him
that he lived in Hillister off 1013.
According to Officer Broom, about a week later, he was looking at the
Facebook page for the Tyler County Sheriff’s Office, he saw Paulette’s mug shot,
and he contacted an investigator he knew to tell him about the encounter at the Boot
Barn. The investigator told Officer Broom he would need him to provide a statement.
Testimony of Kenneth Zeller
Kenneth Zeller testified that at the time of trial he was serving a twelve-year
concurrent sentence for burglary of a habitation and burglary of a building. Zeller
testified it was his third time in the Texas Department of Corrections, but he had
never testified in court, and he had not been offered anything for his testimony in
this trial. According to Zeller, when he was in the Hardin County Jail in May of
16 2019, Paulette, who went by the name “Pedro,” told him in the rec yard that he killed
a girl by cutting her as part of a satanic ritual and that he and Brandon Wood tied a
boy up, put him in a closet and were “going to get him next.” Zeller testified that at
the time of trial Brandon Wood was deceased and had been killed by Blaze Hicks,
whom Zeller knew from jail. Zeller denied ever lying to law enforcement but
acknowledged he had told a lie and used drugs. Booking sheets from the jail showing
Paulette and Zeller were in the jail at the same time in late May 2019 through part
of July 2019 were admitted into evidence.
Testimony of Jessica Lake
Jessica Lake, a forensic scientist with the Texas Department of Public Safety
Crime Lab in Houston, testified that she drafted a lab report that summarized her
finding for the evidence in the case. Lake testified that she tested stains from the
boots, pants, and stepladder collected in this case and all three tested positive for
blood. She testified she then prepared the samples for DNA analysis. Lake’s lab
report was admitted into evidence.
Testimony of Kerry Todd
Kerry Todd, a forensic scientist with the Texas Department of Public Safety
Crime Lab in Houston, testified that she received items from Jessica Lake that were
submitted by Brian Seales with the Tyler County Sheriff’s Office to perform DNA
analysis on them. Todd testified she also received buccal swabs from Christopher
17 Paulette, Robert Sims, and Susan Morris for purposes of DNA comparison. As for
the blood stain on the left boot, Todd concluded that the DNA profile was from a
single individual and obtaining the profile is 14.6 septillion times more likely if the
DNA came from Susan Morris than if the DNA came from an unrelated, unknown
individual and that Morris could not be excluded as a possible contributor to the
profile. As a result of Todd’s testing of the blood stain from the pants, she concluded
that the DNA profile was from a single individual and obtaining that profile is 14.1
septillion times more likely if the DNA came from Susan Morris than if the DNA
came from un unrelated, unknown individual and that Morris could not be excluded
as a possible contributor of the profile. Todd testified that, after testing the blood
stain on the stepladder, she concluded that the DNA profile was from a single
individual and obtaining that profile is 10 septillion times more likely if the DNA
came from Susan Morris than if the DNA came from un unrelated, unknown
individual and that Morris could not be excluded as a possible contributor of the
profile.
Testimony of Brian Lair
Brian Lair, Vice-President of Asset Protection for Brookshire Brothers,
testified that after being contacted by the Texas Rangers he produced a CD of
surveillance video from the Brookshire Brothers store in Onalaska from December
20, 2018, and the CD was admitted into evidence and played for the jury. Lair
18 testified that the video recording showed that at 12:31 p.m. an individual appeared
at the office window in the store where checks were cashed or cash back on
transactions could be processed. Lair testified that he pulled the receipts for the
transactions, and the receipts, admitted at trial, showed that the individual used a
debit card with the last four digits of 3324 to purchase a $100 Verizon card, a CRT
battery, and receive $100 cash back for a total of $238.37, at 12:37 p.m. the
individual used the same debit card to purchase a $500 Best Buy gift card, and at
12:38 p.m. used the same debit card to purchase a $200 Best Buy gift card. After
being shown Morris’s debit card admitted into evidence, Lair testified that the last
four digits of the card were 3324 and that he believed this was the card used to make
the purchases.
Testimony of Jennifer Kelley
Jennifer Kelley testified that she was the manager of Family Dollar in Spurger
on December 19, 2018. According to Kelley, she provided surveillance footage to
law enforcement from inside the store on that day, and a video recording of the
footage was admitted into evidence and published to the jury. Kelley testified that
the footage showed a white male checking out around 8:45 p.m. and that one of the
receipts she retrieved and printed for the transaction showed the white male used a
debit card ending in 3324 on a transaction for $533.01 for a speaker and a $500
prepaid BayMax debit card. The receipt was admitted into evidence.
19 Testimony of Jacob Paul Cooke
Jacob Cooke testified that he met Paulette at a mutual friend’s house in
December of 2017. He told Paulette that he did not have a place to live, and Paulette
told him he could live with him if he helped him with some things on the computer.
That night, Cooke went to stay with Paulette at Paulette’s house, and Paulette was
initially nice to Cooke. According to Cooke, at one point he walked out to Paulette’s
garage and Cooke asked him why it smelled like rotting flesh and Paulette told him
not to worry about it and Paulette showed him his mug shot and said it was from
when he shot and killed five people.
Cooke testified that one night he told Paulette he wanted to leave, and Paulette
encouraged him to wait until the next morning. Cooke testified that that night
although Paulette knew where his SD card to his computer was, he asked Cooke
where it was and hit Cooke’s leg with a baseball bat and broke Cooke’s tibia.
According to Cooke, he was able to hobble outside to the yard and then Paulette
approached him at “blinding speed[]” and broke his patella with the baseball bat.
Cooke testified that Paulette ordered him to get up and go inside, and Paulette told
him he was going to kill him that night. Cooke testified that once inside, Paulette
duct-taped his arms behind his back, duct-taped his ankles, put him in the master
bathtub for hours, made him ingest about fifteen Trazodone pills and a handful of
Tylenol PMs, told him that the day he met him he planned on killing him and no one
20 would miss him, shaved his eyebrows, cut him with razors, and sprayed him with
hairspray and tased him until he caught fire.
Cooke testified that some people came to the door and then Paulette decided
to let Cooke live and let him sleep in the recliner. Over the next few days, Paulette
would leave at night and then in the morning Cooke would let him in because he was
afraid Paulette would beat him with the bat, and Paulette discussed plans with Cooke
about staging a burglary so Paulette could justify Cooke’s injuries if Cooke sought
medical attention. He let Cooke leave but threatened that if Cooke sought medical
attention and told them what Paulette did to him, Paulette would take a gun to the
hospital and shoot Cooke and everyone in the hospital.
Cooke testified that he hobbled to Paulette’s driveway, flagged down a car,
lied to the elderly driver and told her he was in a motorcycle accident because he did
not want her to be afraid, and asked her to take him to Walmart. Once at the
Woodville Walmart, an ambulance transported him to the hospital. Cooke testified
that he had surgery and his patella was repaired with three screws and about fourteen
wires. Photographs of Cooke’s injuries were admitted into evidence at trial and
published to the jury.
Testimony of Officer Garrett Chase Nalley
Officer Garrett Chase Nalley with the Tyler County Sheriff’s Office testified
that around January 2018 he was on duty and responded to a call from Walmart
21 regarding an injured man. When he arrived there, he found a man on a bench in a
great amount of pain. Video footage from Officer Nalley’s body camera from the
encounter was admitted into evidence and published for the jury. Officer Nalley
testified that he did not believe that the man had been in a wreck.
Testimony of Robert Sims
Robert Sims testified that Paulette’s nickname was “Pedro” and that was what
Sims called Paulette. Sims testified that he was at a gas station in Hillister on
December 16, 2018, and Paulette picked him up in a silver Cadillac. According to
Sims, they went to Paulette’s house and Paulette showed him a woman he did not
know who was still alive, but she was bruised, burned, and tied up with zip ties and
in a bathroom cabinet. Sims testified that Paulette told him Sims had to do what he
said, or he would kill Sims and his family. Sims testified he was terrified, and
Paulette asked him to put the woman in the attic. According to Sims, Paulette cut the
zip ties off the woman’s feet and made the woman step into the attic and pulled her
up while Sims pushed her up into the attic. Sims testified that he helped Paulette put
the woman in the attic because he was scared if he refused Paulette would beat him
up, tie him up, and torture him. Sims got up into the attic with Paulette and the
woman, and Paulette zip tied her feet and stomped on the woman’s face “[a] lot[]”
and “[f]or a while.” Paulette threatened that if Sims did not watch him beating the
woman, he would kill Sims. According to Sims, he was afraid to leave and stayed at
22 the house for several days and the entire time he and Paulette used
methamphetamine, Xanax, and heroin provided by Paulette. Sims testified that after
they had put the woman in the attic, Brandon Wood showed up but did not see or
know about the woman in the attic. Sims testified that during that time he and
Paulette had an argument because Sims said he would not help him anymore, and
Paulette and Wood tied Sims up with zip ties. Sims testified that he heard a knock at
the door when Paulette was asleep, Sims found a lighter on the ground and was able
to burn the zip ties off his feet, he answered the door, and it was the police. Sims
testified that Wood was also able to get out of the house.
Sims testified that he was “100 percent[]” sure that Paulette was the person he
saw in Paulette’s attic stomping on Morris’s face, and that Paulette was wearing
black combat boots at the time and Sims was wearing Adidas sneakers. Although
Sims denied causing the woman any injuries, he admitted that a year later he killed
his grandfather when Sims was “off [his] meds[,]” and he was in custody for that
crime at the time of Paulette’s trial. Sims acknowledged that he provided the
testimony in this case because the State agreed it would not prosecute him for
Morris’s murder, but he still faced prosecution for killing his grandfather.
Sims testified that he was in jail for the alleged murder of his grandfather.
Sims stated that when law enforcement came out to Paulette’s house, he told them
at one time that he did not know anything about Morris because he was scared. Sims
23 also admitted that he has mental health problems and his attorney had filed with the
court a request for a competency examination.
The defendant did not testify at trial and did not offer any witnesses. The jury
found Paulette guilty of the capital murder of Morris and the trial court sentenced
him to life in prison without the possibility of parole.
Standard of Review
We review a trial court’s admission of evidence under an abuse of discretion
standard. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003); Montgomery
v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). We must
uphold the trial court’s ruling if it is within the zone of reasonable disagreement.
Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002). We will not disturb
a trial court’s ruling if it is correct on any legal theory of law applicable to that ruling.
De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
Admissibility of Challenged Portions of Cooke’s Testimony
In issue one, Paulette argues the trial court erred in allowing Jacob Cooke’s
testimony about Paulette’s kidnapping of and assault against him, which allegedly
occurred almost a year before Morris’s murder. According to Paulette, this testimony
was about an extraneous offense, the evidence did not support any Rule 404(b)(2)
permitted purposes for such evidence, and the defense did not open the door to any
of those purposes during its cross-examination. Paulette also argued that the
24 testimony was not relevant under Rule 401, the testimony’s probative value was
substantially outweighed by danger of undue prejudice under Rule 403, the
testimony likely led the jury to decide the case on an improper basis, the limiting
instruction was insufficient to cure the error, and the trial court had no reasonable
basis to justify the admission of the testimony because the trial court did not preview
the evidence.
Rule 404(b) of the Texas Rules of Evidence provides in pertinent part as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses[.] This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.…
Tex. R. Evid. 404(b). The list of enumerated purposes for which extraneous offense
evidence may be admissible under Rule 404(b) is neither exclusive nor exhaustive.
Montgomery, 810 S.W.2d at 388. Extraneous offense evidence may be admissible if
it has relevance apart from its tendency to prove a person’s character to show that
he acted in conformity therewith. Id. at 387.
Based on the record before us, we conclude that the issue of whether the
extraneous evidence was admissible for the noncharacter-conforming purposes of
showing Paulette’s identity and intent was within the zone of reasonable
disagreement. See Wheeler, 67 S.W.3d at 888. First, the trial court could have
25 reasonably concluded that following cross-examination of Detective Seales
regarding the black tactical boots (which were found at the scene but were not worn
by Paulette at the time he was arrested, that had a blood stain that was consistent
with Morris’s DNA, and that had a pattern on the bottom of the sole that matched
the imprint on Morris’s face) put the identity of the suspect at issue:
Q. When’s the first time you saw those boots?
A. Those boots? We – we first saw those boots in photographs that we initially took of the residence.
Q. Okay. Did you take the photographs? Let me ask you this: Were you at the residence?
A. Initially?
Q. Yes, sir.
A. I was at the residence. I did not go inside the residence.
Q. Okay. So, notwithstanding photographs, when was the first time that you physically saw those boots?
A. The date that we executed the search warrant to retrieve them.
Q. Okay. Do you remember what day that was, detective?
....
A. . . . December 28th.
Q. Well, what day were you at the residence at the time Mr. Paulette was arrested?
26 A. I believe that was the 21st.
Q. Okay. So those boots were in the residence for seven days?
A. Correct.
Q. Before they were ever put into any type of evidence?
Q. Okay. Who was in the house after you left on the 21st until you got those boots on the 28th?
A. We had a female subject that admitted to going into the residence along with another male subject to retrieve some of her items.
Q. So there were people in that residence?
A. Yes, sir.
Q. There were people that were not law enforcement in that residence?
Q. So you’ve got the boots in evidence, you got them in evidence on December 28th, but how they got there prior to that you cannot testify to?
A. Can you rephrase your question?
Q. How did the boots get in the house?
A. I can’t testify as to how the boots got there.
Q. Okay. Who had possession and/or access to the boots for seven days?
A. We secured the residence the best we could but as I -- as I mentioned in your earlier question, we have a female and a male subject who were in the residence the day that we went to retrieve the boots. 27 Also, the trial court could have reasonably concluded that Cooke’s testimony
was relevant to prove Paulette’s intent to kill Morris. Officer Hughes testified that
when Paulette was arrested, he said something like, “I didn’t mean to. I didn’t do it.”
Jacob Cooke’s testimony was relevant in that it, in combination with Sims’s
testimony that he was kidnapped, zip tied, and tortured by Paulette, supported the
State’s argument that Paulette’s killing of Morris was not unintentional, and that
Paulette used zip ties and similar methods of torture on Sims.
Because the extraneous offense evidence had relevance apart from character
conformity, we conclude that the trial court did not abuse its discretion in
determining that Cooke’s testimony was admissible under Rule 404(b). See
Montgomery, 810 S.W.2d at 387-88. The trial court gave a limiting instruction, and
we presume the jury followed the trial court’s instruction. See Renteria v. State, 206
S.W.3d 689, 707 (Tex. Crim. App. 2006).
Evidence is relevant if it has any tendency to make a fact more or less probable
than it would be without the evidence and the fact is of consequence in determining
the action. Tex. R. Evid. 401. Relevant evidence is generally admissible. Tex. R.
Evid. 402. Under Rule 403 of the Texas Rules of Evidence, a “court may exclude
relevant evidence if its probative value is substantially outweighed by a danger of
one or more of the following: unfair prejudice, confusing the issues, misleading the
jury, undue delay, or needlessly presenting cumulative evidence.” Tex. R. Evid. 403.
28 “Rule 403 favors admissibility of relevant evidence, and the presumption is that
relevant evidence will be more probative than prejudicial.” Montgomery, 810
S.W.2d at 389. Once a trial court determines that extraneous offense evidence is
admissible under Rule 404(b), the trial court must, upon proper objection by the
opponent of the evidence, weigh the probative value of the evidence against its
potential for unfair prejudice. Id.; see Tex. R. Evid. 403. When undertaking a Rule
403 analysis, the trial court must balance
(1) the inherent probative force of the proffered item of evidence along with (2) the proponent’s need for that evidence against (3) any tendency of the evidence to suggest decision on an improper basis, (4) any tendency of the evidence to confuse or distract the jury from the main issues, (5) any tendency of the evidence to be given undue weight by a jury that has not been equipped to evaluate the probative force of the evidence, and (6) the likelihood that presentation of the evidence will consume an inordinate amount of time or merely repeat evidence already admitted.
Gigliobianco v. State, 210 S.W.3d 637, 641-42 (Tex. Crim. App. 2006); see also
Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004). However, if the only
value of extraneous offense evidence is to show character conformity, the balancing
test required by Rule 403 is obviated because “rulemakers hav[e] deemed that the
probativeness of such evidence is so slight as to be ‘substantially outweighed’ by the
danger of unfair prejudice as a matter of law.” Montgomery, 810 S.W.2d at 387
(quoting United States v. Beechum, 582 F.2d 898, 910 (5th Cir. 1978)).
29 After balancing the Rule 403 factors, the trial court could have reasonably
concluded that the probative value of Cooke’s testimony was not substantially
outweighed by the danger of unfair prejudice. See id. We conclude that the trial court
did not abuse its discretion in admitting the challenged evidence. See Moses, 105
S.W.3d at 627; Montgomery, 810 S.W.2d at 391.
That said, even assuming without deciding that the trial court may have erred
in admitting the challenged evidence, given the other evidence before the jury, we
find that it is unlikely that the admission of Cooke’s testimony affected Appellant’s
substantial rights or had a substantial effect on the jury’s verdict. See Tex. R. App.
P. 44.2(b); Ladd v. State, 3 S.W.3d 547, 568 (Tex. Crim. App. 1999). After
examining the entire record, we have fair assurance that the error, if any, did not
influence the jury, or had only a slight effect. See Taylor v. State, 268 S.W.3d 571,
592 (Tex. Crim. App. 2008). We overrule issue one.
Admissibility of Recorded 911 Call
In issue two, Paulette argues the trial court erred in allowing the State to play
a recording of the 911 call made by Brandon Wood (State’s Exhibit 4) to the jury
and in admitting it into evidence. According to Paulette, playing the 911 call was an
impermissible introduction of extraneous offense evidence under Rule 404(b)(1), it
included hearsay statements that were not relevant and more prejudicial than
probative and inflammatory, and it should have been excluded under Rules 401 and
30 403. Paulette also argues that playing the tape violated his constitutional right to
confront the witness under the Sixth Amendment of the United States Constitution
and that the statements in the call were testimonial under Davis v. Washington, 547
U.S. 813 (2006).
We have examined the record of the trial and the only objection the defense
made to State’s Exhibit 4 at trial was under the Confrontation Clause of the Sixth
Amendment. Because Paulette did not raise his Rule 401, 403, and 404 objections
at trial, those arguments are waived. See Tex. R. App. P. 33.1(a). As to Paulette’s
objection under the Confrontation Clause, the State argues that the call recorded in
State’s Exhibit 4 “is a textbook non-testimonial call seeking assistance in an on-
going emergency[]” and admissible under Davis and Michigan v. Bryant, 562 U.S.
344 (2011). 1
The Confrontation Clause of the Sixth Amendment affords an accused the
right to confront witnesses in all criminal prosecutions. U.S. Const. Amend. VI. The
Confrontation Clause prohibits admission of out-of-court statements that are
testimonial in nature unless the prosecution can demonstrate that the out-of-court
1 Although Bryant did not involve statements made in a 911 call, the Supreme Court has explained that in deciding whether statements are testimonial or not for Confrontation Clause purposes, we must look first to all relevant circumstances and, rather than inquiring into the subjective concerns of the parties in a particular encounter, we are to analyze objectively the circumstances of the case and the statements and conduct of the parties. See Michigan v. Bryant, 562 U.S. 344, 360, 369 (2011). 31 declarant is presently unavailable to testify, and the defendant has had a prior
opportunity to cross-examine the declarant. Crawford v. Washington, 541 U.S. 36,
59 (2004). Whether a statement is testimonial or non-testimonial is a question of law
that we review de novo. De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App.
2008); Cook v. State, 199 S.W.3d 495, 497 (Tex. App.—Houston [1st Dist.] 2006,
no pet.) (stating that we review de novo trial court’s ruling that admission of
statement did not violate rights under Confrontation Clause). “Testimonial”
statements include, among other things, ex parte in-court testimony, or its functional
equivalent, such as affidavits, custodial examinations, prior testimony that the
accused was not able to cross-examine, and similar pretrial statements the declarant
would “reasonably expect to be used prosecutorially.” Langham v. State, 305 S.W.3d
568, 576 (Tex. Crim. App. 2010) (citing Wall v. State, 184 S.W.3d 730, 735 (Tex.
Crim. App. 2006)); De La Paz, 273 S.W.3d at 680 (“Generally speaking, a hearsay
statement is ‘testimonial’ when the surrounding circumstances objectively indicate
that the primary purpose of the interview or interrogation is to establish or prove past
events potentially relevant to later criminal prosecution.”).
The primary focus in determining whether a particular hearsay statement is
testimonial “is upon the objective purpose of the interview or interrogation, not upon
the declarant’s expectations.” De La Paz, 273 S.W.3d at 680; see Bryant, 562 U.S.
at 369; Coronado v. State, 351 S.W.3d 315, 324 (Tex. Crim. App. 2011) (“If the
32 objective purpose of the interview is to question a person about past events and that
person’s statements about those past events would likely be relevant to a future
criminal proceeding, then they are testimonial.”). Once a defendant objects to
admission of a statement as a violation of the Confrontation Clause, the burden shifts
to the State, as the proponent of the evidence, to establish that the statement (1) did
not contain testimonial hearsay, or (2) did contain testimonial hearsay but was
nevertheless admissible under Crawford. De La Paz, 273 S.W.3d at 680-81.
Courts have addressed whether calls to 911 constitute testimonial hearsay and
thus whether the statements made in such calls violate the Confrontation Clause. In
Davis v. Washington, the Supreme Court held that a domestic violence victim’s 911
call reporting the defendant’s assault of her was not testimonial and admission of the
call did not violate the Confrontation Clause. 547 U.S. at 829. The Court explained:
Without attempting to produce an exhaustive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either testimonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Id. at 822. The Court noted that, unlike a custodial interrogation, a 911 call, “and at
least the initial interrogation conducted in connection with a 911 call, is ordinarily 33 not designed primarily to ‘establis[h] or prov[e]’ some past fact, but to describe
current circumstances requiring police assistance.” Id. at 827. In Davis, the declarant
“was speaking about events as they were actually happening, rather than
‘describ[ing] past events,’” the declarant “was facing an ongoing emergency[,]” the
declarant’s statements “were necessary to be able to resolve the present emergency”
rather than to simply learn what had happened in the past, and the declarant was not
speaking during a formal interview but was providing “frantic answers” over the
phone in an unsafe environment. Id. (quoting Lilly v. Virginia, 527 U.S. 116, 137
(1999) (plurality op.)).
The Court in Davis provided a non-exhaustive list of factors to consider when
determining whether statements were made during an ongoing emergency,
including: (1) whether the situation was still in progress; (2) whether the questions
sought to determine what is presently happening as opposed to what has happened
in the past; (3) whether the primary purpose of the interrogation was to render aid
rather than to memorialize a possible crime; and (4) whether the events were
deliberately recounted in a step-by-step fashion. See id. at 830-32; Vinson v. State,
252 S.W.3d 336, 339 (Tex. Crim. App. 2008). In determining whether statements
are testimonial, courts generally look to the degree of formality of the declarant’s
interaction with police, the purpose and structure of police questioning, and the
likelihood that the declarant expects that the statements could be used in a criminal
34 prosecution. Cook, 199 S.W.3d at 497-98. “Statements made to police during contact
initiated by a witness at the beginning of an investigation are generally not
considered testimonial.” Id. at 498. Statements made during 911 calls are typically
considered nontestimonial because they are “a cry for help” or “the provision of
information enabling officers immediately to end a threatening situation.” See Davis,
547 U.S. at 832; Cook, 199 S.W.3d at 498; see also Ramjattansingh v. State, 587
S.W.3d 141, 159 (Tex. App.—Houston [1st Dist.] 2019, no pet.) (“Statements made
during a 911 call under circumstances objectively showing that the primary purpose
of the call was to enable police assistance for an ongoing emergency . . . are not
testimonial.”).
Here, Wood reported in the 911 call that he had escaped from Pedro’s house,
that Pedro had a man zip tied, and that Pedro had a gun. The dispatcher spent a large
portion of the call trying to get a good location from Wood so dispatch could send
assistance out. The emergency was ongoing as Wood was breathing heavily and
pleaded with dispatch to hurry to aid the man zip tied at Pedro’s house. On this
record, the trial court could have reasonably concluded that Wood’s 911 call was
nontestimonial. See Ramjattansingh, 587 S.W.3d at 161; Cook, 199 S.W.3d at 498.
Accordingly, the trial court’s admission of the call did not violate Paulette’s rights
under the Confrontation Clause. See Cook, 199 S.W.3d at 498. We conclude that the
35 trial court did not abuse its discretion in admitting State’s Exhibit 4. We overrule
issue two.
Admissibility of Challenged Portion of Officer’s Whitworth’s Testimony
In issue three, Paulette argues the trial court erred in allowing Officer
Whitworth to testify that he knew Paulette was a convicted felon. According to
Paulette, that testimony was neither contextual nor relevant and instead was highly
prejudicial and grounds for granting a mistrial.
In a motion in limine, Paulette requested that the State and witnesses be
precluded from referring in front of the jury to any prior convictions or alleged
violations by Paulette. The State asserted that the only prior conviction or arrests it
thought would be introduced through evidence was that Paulette was arrested in this
case for felon in possession of a firearm. The State argued such evidence was
admissible as context because that was the offense for which he was arrested in the
case and the evidence would show that when law enforcement found Paulette at the
scene he was in possession of a firearm. The trial court agreed that why someone
was arrested “would have to be part of the case in chief[.]” The defense told the court
that when that evidence was introduced, “we’ll object, you can overrule, it’s on the
record,” and the trial court responded, “That’s fine.”
Officer Whitworth testified that after he learned Paulette had been arrested
that morning with a weapon on him, Officer Whitworth proceeded to get a search 36 warrant because he knew Paulette was a convicted felon and there were possibly
more weapons on the premises. Then the following exchange occurred:
[Defense counsel]: Going to object, your Honor. Can we approach?
THE COURT: You may.
[Defense counsel]: Your Honor, we discussed this in motion in limine. Mr. Whitworth has testified that our client is a convicted . . . felon. I think that is a blatant motion for mistrial.
[Prosecutor]: Judge, I’ve been through this before. . . . This is contextual evidence. It comes in because that’s what he was arrested for and we can’t give the jury something in a vacuum. And I sat up here and went over it and over it again with the law and everything else.
THE COURT: Yeah. I thought that there was not going to be an objection if it was contextual. Are you saying that it wasn’t? Are you arguing that it was not at this point?
[Defense counsel]: If he would have said, Your Honor, that we arrived at the scene because the individual had been charged with a firearm and there was a possibility that it was a felon in possession of a firearm, I wouldn’t have an issue with that. He said he is a convicted felon.
[Prosecutor]: Judge, to be a felon with a firearm, it is laid out in the statute he has to be convicted felon. That’s the bottom line.
THE COURT: I’m going to deny the motion for mistrial, and we’re going to move forward.
Even assuming without deciding that it was error for the trial court to admit
the evidence, “it is well settled that an error in [admitting] evidence is cured where
the same evidence comes in elsewhere without objection[.]” Ethington v. State, 819
37 S.W.2d 854, 858 (Tex. Crim. App. 1991); see also Valle v. State, 109 S.W.3d 500,
509 (Tex. Crim. App. 2003); Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998). To preserve his right to complain about Officer Whitworth’s testimony that
Paulette was a convicted felon, Paulette needed to object each time the same
evidence was offered into evidence. See Leday, 983 S.W.2d at 718 (explaining that,
since Texas applies the “futility rule,” a party must continue making futile objections
on pain of waiver, even though the trial court previously ruled the evidence
admissible.) The fact that Paulette was a convicted felon came in through State’s
Exhibits 5 and 9, and Paulette did not object to the admission of those exhibits.
Because the trial court admitted State’s Exhibits 5 and 9 without objection, Paulette
cannot now successfully complain that the trial court erred by admitting the same
evidence through Officer Whitworth’s testimony. See id. Issue three is overruled.
We affirm the trial court’s judgment.
AFFIRMED.
_________________________ LEANNE JOHNSON Justice Submitted on November 30, 2021 Opinion Delivered January 12, 2022 Do Not Publish
Before Kreger, Horton and Johnson, JJ.