Frank v. State

183 S.W.3d 63, 2005 Tex. App. LEXIS 10647, 2005 WL 3526564
CourtCourt of Appeals of Texas
DecidedDecember 22, 2005
Docket2-04-069-CR
StatusPublished
Cited by100 cases

This text of 183 S.W.3d 63 (Frank v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Frank v. State, 183 S.W.3d 63, 2005 Tex. App. LEXIS 10647, 2005 WL 3526564 (Tex. Ct. App. 2005).

Opinions

OPINION

SUE WALKER, Justice.

I. Introduction

A jury convicted Appellant Kesey Darnell Frank of capital murder, and the trial court sentenced him to life in prison. In six points, Frank complains that the trial court erred by overruling his motion to suppress, motion for an instructed verdict, and motion for new trial; by excluding a videotape from evidence; by admitting photographs of the deceased victim; and by making a misstatement of law in the jury charge. We will affirm.

II. Factual Background

On September 15, 2002, Frank, Adalber-to Ponce-Duron, Jerry Jackson, Justin Ebert, and Stephanie Tacina met at a friend’s apartment in the Mack Park Apartments in Denton to watch a football game. Around halftime, Jackson and a few others left to go to the store. Before Jackson left, however, he and Tacina had an argument, and a “scuffle” occurred in the apartment complex’s parking lot. Ta-cina suffered an injury to her head.1 Jackson left for the store, leaving Tacina in the parking lot.

A resident of the apartments noticed Tacina staggering and holding her head and stomach. The resident went to assist Tacina and after discovering a sizeable knot on the back of Tacina’s head, the resident called 911.

Jackson and his acquaintances returned to the apartment complex to find an ambulance, the fire department, and a police car in the parking lot. The police handcuffed and questioned Jackson, Frank, and Ebert. About this time, Amanda Doyle and Tymeshia Turner arrived.2 Police ultimately arrested Jackson but released Frank and Ebert. Frank, Ponce-Duron, Doyle, Turner, and Ebert, who were all present in the parking lot, were visibly upset that Jackson had been arrested and [69]*69were overheard saying that they intended to “beat up” Taeina.

Frank, Ponce-Duron, Doyle, Turner, and Ebert left the apartment complex in Doyle’s white four-door Hyundai. They decided to find out which hospital Taeina had been taken to so that Doyle could beat her up. On the way to the hospital, they discussed what they planned to do with Taeina after the assault. After locating Taeina at Denton Regional Hospital, they learned that she would be released in about an hour. They decided to go to Ebert’s residence to pick up some money for marijuana and to then look for a place to leave Taeina; Ponce-Duron remained at the hospital.

After leaving Ebert’s residence, the group stopped briefly at the house of one of Frank’s relatives, and Frank retrieved a gun; the gun turned out to be fake. The group searched for a suitable place to leave Taeina after the assault. They pulled into a driveway, but deemed the location unsatisfactory, and then pulled into a trailer park across the street. While at the trailer park, Ebert picked up a brick and placed it on the floorboard of the car.3 The group then returned to the hospital.

At the hospital, Doyle, Ebert, and Frank stood behind a sign and waited for Turner to pick up Taeina and Ponce-Duron (they thought Taeina might not enter the car if she saw Doyle), and Frank broke the brick that Ebert had found at the trailer park into two halves. Turner picked up Taeina and Ponce-Duron and then pulled up where Doyle, Ebert, and Frank were waiting, allowing them to hop into the car. After Frank got in the car, he struck Taeina on the head with one of the pieces of brick and then with his fists. Taeina screamed, but no one responded. As they were driving, Frank and Ponce-Duron continued to strike Taeina, pushing her down to the floorboard. Doyle turned around and also struck Taeina a few times from her position in the front passenger seat. Taeina was bleeding from her head, and a “large amount” of blood collected in the back seat.

The group eventually ended up at the residence of one of Doyle’s friends, Tasia Hoffman, between 11:00 p.m. and 12:00 a.m. Hoffman looked inside of Doyle’s car and saw Frank, Ponce-Duron, Ebert, and Taeina. Hoffman observed that Tacina’s back was bruised, that she had burn marks on her, and that her hair was bloody looking. Turner said that they had beaten up Taeina because she had caused Jackson to be arrested, and Doyle asked Hoffman if Doyle could dump Tacina’s body in the field near Hoffman’s home. Hoffman’s father appeared, however, and instructed Hoffman to come back inside her house. The group then left.

Frank, Ponce-Duron, Doyle, Turner, and Ebert drove around for some time before pulling into a field. They all exited the car, and Ponce-Duron pulled Taeina out of the car and tried to break her neck. Frank ripped off Tacina’s shirt, wrapped it around her neck, and also tried to break her neck. Both were unsuccessful. Doyle went to the car and removed a pair of scissors from the glove compartment. Ponce-Duron cut Tacina’s throat with the scissors and stabbed her in the stomach multiple times. The group departed, leaving Tacina’s body in the field.

The group then drove to Doyle’s house where Frank and Ponce-Duron showered and changed clothes. They collected the [70]*70items that had Tacina’s blood on them and placed the items in a trash bag. They then went to a car wash and cleaned Doyle’s car. Frank and Ponce-Duron cleaned the back seat while Doyle cleaned the front seat. Turner then took Frank home.

The next morning, Ebert, Doyle, Turner, and Ponce-Duron picked up cleaning supplies from a friend of Ebert’s and some bleach from Turner’s house and went to Ponce-Duron’s house where Ponce-Duron cleaned Doyle’s car some more, removing portions of it that were blood stained. They burned the trash bag containing the bloody items.

The Lewisville Police Department assigned Detective Edward Barrett to be the lead detective on the case. During the course of his investigation, Detective Barrett found a piece of brick in Ponce-Du-ron’s back yard and another piece of brick near the entrance of Denton Regional Hospital. A subsequent analysis of both pieces showed that they matched; the pieces had previously formed one brick. The brick piece discovered in Ponce-Du-ron’s back yard contained trace evidence, including one piece of hair. Subsequent microscopic analysis of the hair found on the brick and a sample hair taken from Tacina’s body established that the hair on the brick belonged to Tacina. Blood samples taken from Doyle’s car also matched a known sample of Tacina’s blood taken during her autopsy.

The medical examiner listed Tacina’s cause of death as multiple sharp force injuries. Tacina’s autopsy showed that her trachea had been incised, or cut through completely, possibly with a pair of scissors. She also had eleven stab wounds to her abdomen, a burn over her left cheek, and defensive wounds.

III. Motion for New TRial

Frank filed a motion for new trial. In a single sentence, he alleged, “Newly discovered evidence has been obtained concerning the lack of truthfulness of a key State witness, namely Justin Ebert.” Frank attached the affidavit of Omari McKinley to his motion for new trial. McKinley’s affidavit is two paragraphs and states that he met Ebert several years ago, that Ebert made statements “indicating that in return for his cooperation with law enforcement authorities he would not be held criminally responsible for the harm to Stephanie Ta-cina,” and that Ebert had made “several inconsistent statements ...

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Bluebook (online)
183 S.W.3d 63, 2005 Tex. App. LEXIS 10647, 2005 WL 3526564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frank-v-state-texapp-2005.