In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________
No. 02-25-00030-CR ___________________________
DAMION MCKINNEY, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 2 Tarrant County, Texas Trial Court No. 1779711
Before Birdwell, Wallach, and Walker, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION
I. Introduction
The State presented evidence that on May 6, 2023, a black male wearing glasses
and driving a blue car with license plate SCT 1387 robbed Ricky Sims outside of a
used car lot. Sims testified that the bespectacled robber was armed and accompanied
in that vehicle by an armed black female with a masculine appearance and by an
armed “light-skinned” black male in the used red Corvette that Sims had sought to
purchase. Sims identified Appellant Damion McKinney at trial as the blue car’s driver.
The State’s evidence also included gas station surveillance video of the blue car
and its driver eight minutes from the scene just before the offense occurred and body
camera footage of a traffic stop three days after the robbery, showing McKinney as
the blue car’s driver. The officer who conducted the traffic stop identified McKinney
at trial and testified that the blue car’s passenger was a black female with a masculine
appearance. The crime scene officer who subsequently searched the blue car pursuant
to a warrant testified that she located McKinney’s driver’s license in a wallet in the
driver’s side door, and her photo of his driver’s license was admitted into evidence
and published to the jury.
McKinney, in an interview that occurred before his arrest, admitted to the
investigating detective that he was the blue car’s driver and had been at the robbery
scene, but he did not admit to any involvement in the robbery. After this interview,
the detective put McKinney’s photo into a photo lineup from which Sims identified
2 McKinney as one of the robbers with “a hundred percent” certainty. During Sims’s
cross-examination, McKinney’s counsel offered, and the trial court admitted, the
photo lineup, which showed McKinney as the only suspect wearing glasses. The
detective did not write the robbery arrest warrant for McKinney until after (1) Sims
picked him from the lineup, (2) McKinney admitted having been at the scene, and
(3) the gas station surveillance video confirmed McKinney’s presence near the scene
that day. The detective also testified that when he interviewed McKinney after his
arrest, McKinney asked him about “making a barter” in the case.
Despite his “not-guilty” plea, a jury found McKinney guilty of aggravated
robbery with a deadly weapon, a first-degree felony. See Tex. Penal Code Ann. § 29.03.
McKinney also pled “not true” to the enhancement allegations of two prior and
sequential final felony convictions, but the trial court found the allegations true and
then sentenced him to 35 years’ confinement. See id. § 12.42(d).
In four issues, McKinney complains that the trial court erred by (1) denying
him due process when it allowed Sims to identify him in court after an impermissibly
suggestive photo lineup; (2) admitting the gas station surveillance video based on
improper authentication; (3) admitting his statements made during a custodial
interrogation without a voluntariness finding; and (4) failing to grant a mistrial after
the detective made “prejudicial statements regarding [his] being in custody.” In an
unnumbered issue, he also argues that the above cumulatively violated his right to a
fair trial.
3 Because the record reflects no preservation of McKinney’s first and fourth
issues, no abuse of discretion in his second and third issues, and thus no error to
accumulate in his unnumbered issue, we affirm the trial court’s judgment.
II. Identification
In his first issue, McKinney argues that allowing Sims to make an in-person
identification of him at trial violated his right to due process because Sims admitted
that he had a limited time to view his robbers and described one of them as “a person
with glasses and dark skin” and Fort Worth Police Detective Kenyon Willingham
presented him with a lineup with McKinney as the only person wearing glasses.
The State responds that because the trial court never ruled on this issue, it is
not preserved for our review. The State points out that McKinney did not file a
written pretrial motion to suppress; that, when McKinney orally moved to suppress
the in-court identification at trial, the trial court denied it as untimely; that McKinney
does not complain about that ruling in this appeal; and that McKinney did not object
to Sims’s in-court identification of him. See Ethington v. State, 819 S.W.2d 854, 858
(Tex. Crim. App. 1991) (stating that an error in the admission of evidence is cured
when the same evidence comes in elsewhere without objection); see also Tex. R. App.
P. 33.1 (setting out how to preserve error); Holmes v. State, 248 S.W.3d 194, 199 (Tex.
Crim. App. 2008) (noting that a defendant can challenge evidence’s admissibility
either by objecting to its admission when it is offered at trial and requesting a hearing
4 outside the jury’s presence or by filing a pretrial motion to suppress and having it
heard and ruled upon before trial).
Even assuming, for argument’s sake, that McKinney had preserved this
complaint for our review,1 the trial court admitted the following unobjected-to
evidence at trial that proved McKinney’s identity as one of Sims’s robbers:
• Sims testified that he was robbed at gunpoint on May 6, 2023, between 4:21 p.m. (the time his Uber arrived at the used car lot) and 4:25 p.m. (the time of his first 911 call). In the 911 call, Sims gave the blue car’s license plate number and described its driver as a black guy “with some glasses on.”
• McKinney was not wearing glasses at trial. The prosecutor asked Sims, “Even though he’s not wearing glasses, do you still recognize him as the driver of that blue car?” Sims replied, “He could put a wig, makeup on, I could recognize him.”
• During Sims’s cross-examination, McKinney’s counsel offered, and the trial court admitted, the photo lineup containing McKinney,2 allowing the jury to compare his lineup appearance to his trial appearance.
1 After voir dire but before opening statements, McKinney’s counsel orally moved to suppress Sims’s in-court identification of him based on “an impermissibly suggesti[ve] lineup.” The State objected that the motion was untimely, and the trial court sustained that objection. The State later offered for the record a copy of court procedures and the pretrial waiver. The court procedures require bringing any pretrial matters that will require a hearing to the trial court’s attention “immediately upon receipt of the setting notice,” and the pretrial waiver states, “We hereby agree that there are no pre-trial matters that require testimony or pre-trial motions that are potentially case dispositive that need to be addressed with the Court regarding the above referenced matter,” and it was signed by the prosecutor and defense counsel in August 2024. Trial began on January 27, 2025. 2 McKinney’s counsel attempted to turn the lineup into part of his trial strategy. During his opening statement, he informed the jury that the evidence would show an impermissibly suggestive lineup because “only Mr. McKinney was wearing glasses” and advised the jury, “It’s easy enough to generate a lineup with similar features and similar characteristics like everybody wearing glasses, but that’s not what they did.”
5 • Body camera video of the traffic stop three days after the robbery showed that McKinney was the driver of the blue car with license plate SCT 1387. The video allowed the jurors to compare Sims’s testimony, in-court identification, and 911- call description to McKinney’s appearance three days after the offense and to compare for themselves this evidence with McKinney’s appearance at trial.
• McKinney’s driver’s license—showing him without glasses—was found with him in the blue car during the traffic stop three days after the robbery, again allowing the jurors to compare his appearance to the above description.
• Gas station surveillance video showed McKinney and the blue car with license plate SCT 1387 immediately before the robbery and near the scene, again allowing the jury to compare his appearance to the other evidence presented at trial.
• Detective Willingham testified that McKinney had admitted to him that he had driven the blue car and had been at the robbery scene on May 6, 2023, and he stated that he did not include McKinney in the photo lineup until after he both spoke with McKinney and confirmed McKinney’s whereabouts that day at the gas station near the crime scene before the robbery.
In light of the above, even if McKinney had preserved this complaint, see Tex. R. App.
P. 33.1, any error from the photo lineup would be harmless,3 and we overrule his first
issue.
During Sims’s cross-examination, McKinney’s counsel asked Sims, “Do you know why they wouldn’t show you six photos with . . . kind of like-appearing guys with glasses,” and Sims replied, “You got to ask them. I described to the T.” The investigating detective acknowledged during cross-examination that the risk of preparing a lineup in which only one person has a distinguishing characteristic could result in a misidentification. During closing arguments, McKinney’s counsel argued that the lineup was “completely suggestive.” Suggestive line-ups or in-court identifications after such lineups are reviewed 3
to determine whether they give rise to a very substantial likelihood of misidentification based on the totality of the circumstances. See Neil v. Biggers, 409 U.S. 188, 196–98, 93 S. Ct. 375, 380–82 (1972) (citing Stovall v. Denno, 388 U.S. 293, 301–
6 III. Authentication
In his second issue, McKinney complains that the trial court abused its
discretion by admitting State’s Exhibit 17, the gas station surveillance video, because it
was not properly authenticated when the State “failed to produce a witness to testify
to the authenticity of the video . . . or that [it] had not in any way been altered or
edited,” in violation of Rule of Evidence 901. The State responds that the trial court
did not abuse its discretion by admitting the video after sufficient evidence was
offered to support its authenticity when Detective Willingham testified that he
obtained the security footage from the gas station and did not alter it and when
McKinney “can be seen in the footage driving the same car used for the robbery.”
A. Background
Detective Willingham testified that he tracked the blue vehicle to a QuikTrip
(QT) gas station and requested video from QT for the offense date of May 6, 2023.
When the prosecutor asked him if State’s Exhibit 17 was a fair and accurate copy of
the video he received from QT from that date, Detective Willingham replied, “Yes,
sir,” and when the prosecutor asked him if it had been altered or changed in any way
since he received it, he replied, “No, sir.” Defense counsel objected to the video’s
admission, stating, “There’s no testimony that this is a fair and accurate depiction of
02, 87 S. Ct. 1967, 1972 (1967), and Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971 (1968)). The central question is whether an identification is reliable despite a suggestive confrontation procedure. Id. at 199, 93 S. Ct. at 382. The record here, containing ample corroborative evidence, reflects the reliability of McKinney’s pretrial and in-court identifications by Sims as one of the robbers.
7 the events that are recorded on that date. We would require somebody from QT to
authenticate the video . . . .” The prosecutor responded that the detective had received
the video directly from QT and did not need to be present at the location to
authenticate that it was what it appeared to be. The trial court overruled McKinney’s
objection and admitted the video.
B. Applicable law
Under Rule of Evidence 104(a), whether to admit evidence is a preliminary
question for the trial court, and Rule of Evidence 901(a) defines authentication as an
admissibility “condition precedent” that requires the proponent to make a threshold
showing that would be “sufficient to support a finding that the matter in question is
what its proponent claims.” Tienda v. State, 358 S.W.3d 633, 637–38 (Tex. Crim. App.
2012) (citing Tex. R. Evid. 104(a), 901(a)). In performing its Rule 104 gate-keeping
function in a jury trial, the trial court must be persuaded that the evidence’s proponent
has supplied facts sufficient to support a reasonable jury’s determination that the
evidence is authentic. Id. at 638. “Evidence may be authenticated in a number of ways,
including by direct testimony from a witness with personal knowledge, by comparison
with other authenticated evidence, or by circumstantial evidence.” Id. “Testimony of a
witness with knowledge” is “[t]estimony that an item is what it is claimed to be.” Tex.
R. Evid. 901(b)(1).
The Court of Criminal Appeals has been asked to determine whether a video’s
proponent may sufficiently prove its authenticity “without the testimony of someone
8 who either witnessed what the video depicts or is familiar with the functioning of the
recording device,” and has concluded that, “yes, it is possible.” Fowler v. State, 544
S.W.3d 844, 848 (Tex. Crim. App. 2018). In Fowler, police found a Family Dollar store
receipt near a burglarized building; the receipt was date- and time-stamped and listed
some of the equipment used in the burglary. Id. at 846. They went to the store and
requested surveillance footage from the receipt’s date and time. Id. The store’s
manager retrieved a video stamped with the same date and time as the receipt. Id.
As here, at trial, defense counsel objected that “[t]hey need somebody from the
Family Dollar store” to support the video’s admissibility. Id. However, after the
sponsoring officer testified that the video had the same date and time that was on the
receipt, the trial court admitted it, and then the officer testified that the customer on
the video was the defendant, who was holding in his hand some cutters—one of the
items on the receipt. Id. at 847–48.
The court noted, “even though the most common way to authenticate a video
is through the testimony of a witness with personal knowledge who observed the
scene, that is not the only way.” Id. at 849. Evidence can also be authenticated by the
appearance, contents, substance, internal patterns, or other distinctive characteristics
of the item, taken together with all the circumstances. Id. Because video recordings
without audio are treated as photographs and are properly authenticated when it can
be proved that the images accurately represent the scene in question and are relevant
to the disputed issue, the trial court did not abuse its discretion when the State
9 authenticated the video with (1) the officer’s in-person request of the store manager
to pull the surveillance video on a certain date at a certain time; (2) the distinctive
characteristic that there is a date and time stamp on the video; (3) the fact that the
video’s date and time correspond to the date and time on the receipt found near the
crime scene; and (4) the fact that the video pulled by the store manager reveals the
defendant at the store on that date at that time purchasing the items listed on the
receipt. Id. at 849–50 (holding that trial court’s determination that the officer supplied
facts sufficient to support a reasonable jury determination that the video was
authentic was a decision within the zone of reasonable disagreement and thus no
abuse of discretion).
C. Analysis
Based on Detective Willingham’s testimony and the QT video’s contents,
which showed the blue car with license plate SCT 1387 and its driver, a black male
wearing glasses, near the robbery scene between 3:43 p.m. and 3:48 p.m., the trial
court could have reasonably determined that the QT video was sufficiently authentic
to admit it to the jury and thus did not abuse its discretion. See id. We overrule
McKinney’s second issue.
IV. Custodial statements
In his third issue, McKinney argues that the trial court erred by allowing
Detective Willingham to testify about his statements in custodial interrogation in
violation of his right to counsel, rendering his statements involuntary. He asserts that
10 there is “no evidence that [he] made an intelligent, voluntary[,] and knowing waiver of
his right to counsel when the Detective met with him in jail in the absence of his
counsel.” The State responds that the evidence at the trial court’s Article 38.22
hearing showed that McKinney knowingly and intelligently waived his right to have
counsel present during questioning and that he spoke with the detective willingly
when Detective Willingham met with him after McKinney asked to speak to the
detective and clearly waived his rights.
Detective Willingham testified that when he spoke with McKinney for the
second time, McKinney had been under arrest for the aggravated robbery and had
asked to speak with him. After a defense objection to this testimony, the trial court
held a hearing under Code of Criminal Procedure Article 38.22 outside the jury’s
presence at defense counsel’s request.
During the Article 38.22 hearing, Detective Willingham testified that McKinney
had been in custody before the second interview, that he had read to McKinney his
Miranda rights, that this was recorded on the detective’s body camera in State’s
Exhibit 44, and that McKinney had answered that he understood the warnings and
voluntarily waived them. The prosecutor then advised the trial court that the State did
not intend to play the body camera video or to introduce it but rather to ask Detective
Willingham about the questioning and McKinney’s request to barter in the case.
11 Defense counsel objected that there had been no affirmative waiver of
McKinney’s rights to proceed with the interview and that the detective had known
that McKinney was represented by counsel, making it an improper contact with a
represented defendant and thus inadmissible. The prosecutor replied that McKinney
had asked to speak with the detective and “very clearly waived his rights, and the
detective made him answer verbally yes to every single waiver.” The trial court
reviewed that portion of the video and overruled the admissibility objection, finding
orally that Article 38.22, Section 3 had been complied with and allowing the
prosecutor to go into some of the questioning “since the State is not going to actually
play the video.” The trial court also granted to McKinney a running objection.
Before the jury, Detective Willingham testified that McKinney had asked to
speak with him, that he had read the Miranda warnings to McKinney, that McKinney
had waived his rights, and that McKinney—in his own words—had asked about
“making a barter” in the case, which the detective understood meant that McKinney
had information about the offense and was showing his consciousness of guilt.
The Sixth Amendment right to counsel applies in all state criminal prosecutions
in which the defendant is accused of a felony, and once the adversarial judicial process
has been initiated, the Sixth Amendment right to counsel guarantees the accused the
right to have counsel present at all “critical” stages of the criminal proceeding. Hughen
v. State, 297 S.W.3d 330, 334 (Tex. Crim. App. 2009). Interrogation by police after
12 charges have been brought is such a critical stage. Id. But the Sixth Amendment right
to have counsel present during interrogation, once the adversarial judicial process has
been initiated, may be waived, as long as the waiver is voluntary, knowing, and
intelligent. Id. at 334–35. And when an accused is read his Miranda rights, which
include the right to have counsel present during interrogation, and he agrees to waive
those rights, that typically suffices to validly waive the Sixth Amendment right to have
counsel present during interrogation. Id. at 335. Further, to show a Sixth Amendment
violation, the defendant must demonstrate that the police took some action, beyond
mere listening, that was designed to deliberately elicit incriminating remarks. State v.
Maldonado, 259 S.W.3d 184, 191 (Tex. Crim. App. 2008) (stating that when the
defendant initiated the communication with the officer, he was “in a position to
unilaterally waive his Sixth Amendment right to counsel”).
Article 38.22 sets out rules governing the admissibility of an accused’s
statements that are the product of custodial interrogation. Oursbourn v. State, 259
S.W.3d 159, 171 (Tex. Crim. App. 2008). Section 3 of Article 38.22 applies to an
accused’s custodial-interrogation statements and provides that only “warned and
waived” statements may be admitted. Id. That is, an accused’s custodial-interrogation
statement is not admissible unless, before making the statement, he “received the
warnings provided in Article 15.17 or Article 38.22, [Section] 2(a) or [Section] 3(a)
(which incorporate the requirements of Miranda), and he knowingly, intelligently, and
voluntarily waived those rights.” Id. at 171–72; see also Tex. Code Crim. Proc. Ann. art.
13 38.21 (“A statement of an accused may be used in evidence against him if it appears
that the same was freely and voluntarily made without compulsion or persuasion.”).
We have reviewed State’s Exhibit 44, body camera video that shows that
Detective Willingham gave McKinney his Miranda warnings and that McKinney
acknowledged that he understood each of those warnings before the detective asked
him what McKinney wanted to talk with him about. Because the trial court could have
reasonably found from viewing the video that McKinney had made a knowing,
intelligent, and voluntary waiver of his rights by opting to speak with Detective
Willingham after he received his Miranda warnings, there was no Sixth Amendment or
Article 38.22 violation when Detective Willingham subsequently testified about
McKinney’s statements. 4 We overrule McKinney’s third issue.
V. Mistrial
In his fourth issue, McKinney complains that the trial court erred by failing to
grant a mistrial after Detective Willingham’s testimony that he was in custody in the
county jail, violating his right to the presumption of innocence. He asserts, “In the
instant case, the universe of inferences that a jury could draw from the admission of
4 Further, considering the overwhelming evidence of McKinney’s identity as one of the robbers, the fact issue for the jury was whether McKinney had committed armed robbery, as charged in the indictment and testified by Sims, or robbery without guns, as testified by another witness and included as a lesser-included offense in the jury charge.
14 testimony that [he] was being detained in the county jail is limited to [his being]
dangerous[] or . . . culpable for this charge or another charge.”
The State responds that the trial court did not abuse its discretion when
Detective Willingham had already testified, without objection, that the interview took
place after McKinney’s arrest, making McKinney’s location in county jail after his
arrest redundant and any added prejudice de minimis, particularly when the jury is
presumed to have followed the trial court’s instruction to disregard.
During Detective Willingham’s direct testimony, the following dialogue ensued:
Q. [Prosecutor:] And after the Defendant was arrested for this offense, did you later speak with him again?
A. Yes, sir.
Q. And was that conversation a little bit different than your first one?
Q. How so?
A. This time, we were -- he was in County at the time, and I went to talk to him.
[Defense counsel]: Judge, I object to the witness referring to my client as being in County.
THE COURT: Sustained.
[Defense counsel]: Ask that the jury disregard.
THE COURT: The jury will disregard the last answer.
[Defense counsel]: And we’ll request a mistrial.
15 THE COURT: Overruled. [Emphases added.]
A mistrial is the trial court’s remedy for improper conduct that is “so
prejudicial that expenditure of further time and expense would be wasteful and futile.”
Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004). However, here, in
addition to Detective Willingham’s unobjected-to testimony that the interview
occurred after McKinney’s arrest, the record also reflects that during Detective
Willingham’s cross-examination by McKinney’s defense counsel, the “county”
reference occurred again with no objection, request for an instruction to disregard, or
motion for mistrial:
Q. [Defense counsel:] Okay. And at that time, Mr. Sims had not made any sort of identification. I think you testified to that earlier. That came after your interview with Mr. McKinney, correct?
A. Which time? Okay. So which interview are you referring to, because I --
Q. The first one.
A. -- interviewed him a couple times.
A. After -- so the first time, no, he had not identified him yet.
Q. Right. And you told Mr. McKinney that someone was putting his name in something, correct?
A. Correct.
Q. And that wasn’t true, right?
16 A. Are you referencing when he was in County when I was interviewing him?
Q. No.
A. Is that the interview you’re talking about?
Q. No. I’m talking about the first time that you interviewed him.
A. Okay. Yes, sir. [Emphasis added.]
Because the record reflects that the same information was admitted without
objection, see Ethington, 819 S.W.2d at 858, we overrule McKinney’s fourth issue.
VI. Cumulative error
In a cumulative-error analysis, we consider only errors that were preserved for
appeal and that were actually errors. Schmidt v. State, 612 S.W.3d 359, 372 (Tex. App.—
Houston [1st Dist.] 2019, pet. ref’d); see Chamberlain v. State, 998 S.W.2d 230, 238 (Tex.
Crim. App. 1999) (stating that the doctrine does not apply to non-errors). As set out
above, McKinney failed to preserve some of his complaints and the rest showed no
abuse of discretion. Accordingly, we overrule McKinney’s unnumbered remaining issue.
VII. Conclusion
Having overruled all of McKinney’s issues, we affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell Justice
Do Not Publish Tex. R. App. P. 47.2(b)
Delivered: January 15, 2026