Jacob Jordann Bright v. State

Opinion

ACCEPTED 07-15-00118-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 11/20/2015 3:23:25 PM Vivian Long, Clerk

IN THE COURT OF APPEALS FOR THE SEVENTH COURT OF APPEALS DISTRICT OF TEXAS FILED IN 7th COURT OF APPEALS JACOB JORDANN BRIGHT, § AMARILLO, TEXAS APPELLANT § 11/20/2015 3:23:25 PM § VIVIAN LONG CLERK V. § NO. 07-15-00118-CR § THE STATE OF TEXAS, § APPELLEE §

APPEALED FROM CAUSE NUMBER 1306330D IN THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS; THE HONORABLE ELIZABETH BEACH, JUDGE PRESIDING.

§§§ STATE'S BRIEF §§§

SHAREN WILSON Criminal District Attorney Tarrant County, Texas

DEBRA WINDSOR Chief, Post-Conviction

STEVEN W. CONDER, Assistant Criminal District Attorney Oral Argument 401 W. Belknap Requested Only If Fort Worth, Texas 76196-0201 Appellant Granted (817) 884-1687 Oral Argument FAX (817) 884-1672 State Bar No. 04656510 COAAppellatealerts@tarrantcountytx.gov

MICHELE HARTMANN, Assistant Criminal District Attorney TABLE OF CONTENTS

INDEX OF AUTHORITIES ......................................................................................................... iii

STATEMENT OF THE CASE....................................................................................................... 1

STATEMENT OF FACTS ............................................................................................................. 1

SUMMARY OF STATE’S REPLIES ........................................................................................... 6

STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER ONE: SUFFICIENCY ............................................................................................................................ 8

A. Standard of Review ................................................................................................... 8 B. Sufficient Evidence Murder Occurred in Course of Robbery or Attempted Robbery ........................................................................................... 10 C. Sufficient Evidence of Intent to Kill .................................................................. 14 D. Conclusion ................................................................................................................... 20

STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO: CAPITAL MURDER INSTRUCTION ................................................................................ 21

A. Trial Court Properly Defined Capital Murder .............................................. 22 B. Any Error Not Reversible ..................................................................................... 24

STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO-A: FELONY MURDER INSTRUCTION................................................................................. 30

STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO-B: POSSIBLE DOUBT INSTRUCTION .................................................................................. 32

STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER THREE: ADMISSION OF TEXT MESSAGES .................................................................................. 34

A. Proper Admission of Text Messages ................................................................ 35 B. Any Error Not Reversible ..................................................................................... 39

i CONCLUSION AND PRAYER .................................................................................................. 43

CERTIFICATE OF SERVICE ..................................................................................................... 43

CERTIFICATE OF COMPLIANCE ........................................................................................... 44

ii INDEX OF AUTHORITIES

CASES PAGES

Acosta v. State, 429 S.W.3d 621 (Tex. Crim. App. 2014) ......................................................................... 9

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ........................................................21, 25, 33

Blanton v. State, 2004 WL 3093219 (Tex. Crim. App. 2004) ............................................................... 31

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) ......................................................................... 8

Brown v. State, 270 S.W.3d 564 (Tex. Crim. App. 2008), cert. denied, 556 U.S. 1211, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009) ....................................... 9

Charlton v. State, 334 S.W.3d 5 (Tex. App. - Dallas 2008, no pet.) ....................................................... 15

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) ...................................................................... 10

Conner v. State, 67 S.W.3d 192 (Tex. Crim. App. 2001) ................................................................. 13, 36

Davis v. State, 2005 WL 2100446 (Tex. App. - Fort Worth August 31, 2005, pet. refused) ........................................................................................ 18

Gardner v. State, 2015 WL 4652718 (Tex. App. - Fort Worth August 6, 2015, pet. refused) ........................................................................................... 36

iii Garrett v. State, 851 S.W.2d 853 (Tex. Crim. App. 1993) ...................................................................... 11

Gigliobianco v. State, 210 S.W.3d 637 (Tex. Crim. App. 2006) ...................................................................... 37

Hall v. State, 970 S.W.2d 137 (Tex. App. - Amarillo 1998, pet. refused).................................. 14

Hart v. State, 89 S.W.3d 61 (Tex. Crim. App. 2002) ........................................................................... 15

Hernandez v. State, 969 S.W.2d 440 (Tex. App. - San Antonio 1998, pet. refused) .......................... 13

Herrin v. State, 125 S.W.3d 436 (Tex. Crim. App. 2002) ...................................................................... 13

Hicks v. State, 2015 WL 4462277 (Tex. App. - Dallas July 21, 2015, pet. refused) ............... 17

Hinds v. State, 970 S.W.2d 33 (Tex. App. - Dallas 1998, no pet.) .................................................... 39

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) .............................................................................. 9

Ibanez v. State, 749 S.W.2d 804 (Tex. Crim. App. 1986) ...................................................................... 11

Jones v. State, 944 S.W.2d 642 (Tex. Crim. App. 1996) cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54 (1997)........................................ 17, 18

Joseph v. State, 2013 WL 2149779 (Tex. App. - Houston [14th Dist.] May 16, 2013, pet. refused) ....................................................................................... 37, 38

iv Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) ....................................................................... 22

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ...................................................................... 10

Linden v. State, 347 S.W.3d 819 (Tex. App. - Corpus Christi-Edinburg 2011, pet. refused) ............................................................................................................... 17

Martinez v. State, 924 S.W.2d 693 (Tex. Crim. App. 1996) ...................................................................... 22

Matthews v. State, ___ S.W.3d ___, 2015 WL 4076960 (Tex. App. - Fort Worth July 2, 2015, no pet.) ............................................................................................................ 33

Mays v. State, 318 S.W.3d 368 (Tex. Crim. App. 2010) cert. denied, 562 U.S. 1274, 131 S.Ct. 1606, 179 L.Ed.2d 3513 (2011) .................................... 15

Medina v. State, 7 S.W.3d 633 (Tex. Crim. App. 1999) cert. denied, 529 U.S. 1102, 120 S.Ct. 1840, 146 L.Ed.2d 782 (2000)....................................... 26

Montez v. State, 2006 WL 916437 (Tex. App. - Houston [14th Dist.] April 6, 2006, pet. refused) ............................................................................................... 31

Montgomery v. State, 810 S.W.2d 372 (Tex. Crim. App. 1991) ...................................................................... 35

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998) cert. denied, 526 U.S. 1070, 119 S.Ct. 1466, 143 L.Ed.2d 550 (1999) ...................................... 16

v Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................................................ 39

Nelson v. State, 2015 WL 1757144 (Tex. Crim. App. April 15, 2015)............................................. 37

Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) ............................................................... 22, 24

Nolen v. State, 872 S.W.2d 807 (Tex. App. – Fort Worth 1994), pet. refused, 897 S.W.2d 789 (Tex. Crim. App. 1995) ....................................................................... 37

Obigbo v. State, 6 S.W.3d 299 (Tex. App. - Dallas 1999, no pet.) ....................................................... 15

Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995) cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996)................................ 26, 27

Pitonyak v. State, 253 S.W.3d 834 (Tex. App. - Austin 2008, pet. refused) ............................... 15, 17

Posey v. State, 966 S.W.2d 57 (Tex. Crim. App. 1998) ........................................................................ 31

Powell v. State, 189 S.W.3d 285 (Tex. Crim. App. 2006) ...................................................................... 35

Reyes v. State, ____ S.W.3d ____, 2015 WL 7008130 (Tex. App. - Fort Worth November 12, 2015) ..............................................................................................15, 17, 37

Riddle v. State, 888 S.W.2d 1 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1068, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995)....................................... 22

vi Rogers v. State, 991 S.W.2d 263 (Tex. Crim. App. 1999) ...................................................................... 36

Sholars v. State, 312 S.W.3d 694 (Tex. App. - Houston [1st Dist.] 2009, pet. refused) ............. 17

Solomon v. State, 49 S.W.3d 356 (Tex. Crim. App. 2001) ........................................................................ 39

State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005) ............................................................... 35, 37

Strickland v. State, 2012 WL 955374 (Tex. App. - Fort Worth March 22, 2012, no pet,).............. 14

Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004) ............................................................... 15, 23

Torres v. State, 794 S.W.2d 596 (Tex. App. - Austin 1990, no pet.)................................................. 36

Turner v. State, 805 S.W.2d 423 (Tex. Crim. App. 1991) cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991) ............................................ 23

Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) ...................................................................... 25

Villareal v. State, 453 S.W.3d 429 (Tex. Crim. App. 2015) ...................................................................... 24

Vosberg v. State, 80 S.W.3d 320 (Tex. App. - Fort Worth 2002, pet. refused) ........................ 32, 33

Wawrykow v. State, 866 S.W.2d 87 (Tex. App. - Beaumont 1993, pet. refused) ................................. 15

vii Whitaker v. State, 977 S.W.2d 869 (Tex. App. - Beaumont 1998, pet. refused) .............................. 14

White v. State, 2011 WL 3612213 (Tex. App. - El Paso August 17, 2011, no pet.) ........... 11, 12

Wood v. State, 2001 WL 1047073 (Tex. App. - Dallas September 13, 2001, no pet.) ............ 24

Wyatt v. State, 23 S.W.3d 18 (Tex. Crim. App. 2000) ....................................................................... 9, 18

Yzaguirre v. State, 394 S.W.3d 526 (Tex. Crim. App. 2013) ...................................................................... 26

STATUTES

Tex. Code Crim. Proc. art. 36.14 ........................................................................................... 31

Tex. Penal Code §15.01(a)...................................................................................................... 10

Tex. Penal Code §19.02(b) ..................................................................................................... 22

Tex. Penal Code §19.03(a)(2) .................................................................................10, 15, 22

Tex. Penal Code §29.01(1) ..................................................................................................... 11

Tex. Penal Code §29.02(a)...................................................................................................... 10

RULES

Tex. R. App. P. 44.2(b) .............................................................................................................. 39

Tex. R. Evid. 403 ......................................................................................................................... 35

viii IN THE COURT OF APPEALS FOR THE SEVENTH COURT OF APPEALS DISTRICT OF TEXAS

JACOB JORDANN BRIGHT, § APPELLANT § § V. § NO. 07-15-00118-CR § THE STATE OF TEXAS, § APPELLEE §

APPEALED FROM CAUSE NUMBER 1306330D IN THE CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY, TEXAS; THE HONORABLE ELIZABETH BEACH, JUDGE PRESIDING.

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

A jury convicted the appellant of capital murder. (C.R. I:296, 301; R.R.

VI:133). The trial court sentenced him to life confinement. (C.R. I:301; R.R.

VI:135-36).

STATEMENT OF FACTS

On November 19, 2012, the appellant borrowed Beatrice Olvera’s car

and drove to the Southgate Manor Apartments on East Seminary Drive in Fort

Worth, Texas. (R.R. IV:83, 115, 117). The appellant was dressed in jeans and

a black jacket. (R.R. IV:87).

1 At the Southgate Manor Apartments, the appellant ran into childhood

friend, Brian Mason, and his son. (R.R. IV:31-32). Mr. Mason’s son was

playing with a black Halloween mask that covered his face except for eye

openings. (R.R. IV:33). Intrigued, the appellant asked Mr. Mason if he could

have the mask. (R.R. IV:34). Mr. Mason refused and walked off. (R.R. IV:34).

Mr. Mason threw the mask into the street as he drove away from the

Southgate Manor Apartments. (R.R. IV:34).

While inside Mechelle Patterson’s apartment, the appellant talked to

Floyd McCoy about getting some money. (R.R. IV:83, 85). The appellant

decided to rob someone using his .22 Ruger revolver. (R.R. IV:86). The

appellant and Mr. McCoy left Ms. Patterson’s apartment and went in the

breezeway. (R.R. IV:87-88). The men appeared to be waiting for someone to

come through the breezeway. (R.R. IV:88). Mr. McCoy soon returned alone to

Ms. Patterson’s apartment. (R.R. IV:90).

About this time, Islander Tavira and Maria Rodriguez, along with two of

her children, returned to the Southgate Manor Apartments with dinner from

the grocery store. (R.R. III:28, 66). A short African-American man dressed in

black clothes and with a mask covering his face approached Mr. Tavira from

the breezeway. (R.R. III:28, 37, 74-76). The man pointed his gun at Mr.

2 Tavira and demanded money. (R.R. III:28-29, 77-79). Mr. Tavira told the man

that he did not have any money, but the man repeated his request. (R.R.

III:78).

At this point, Ms. Rodriguez’ young son, Jovani, darted past the man

towards their apartment. (R.R. III:28, 79). The man chased after Jovani

through the breezeway with Mr. Tavira and Ms. Rodriguez in pursuit. (R.R.

III:28-29, 80-81). At this point, the man (identified by Mechelle Patterson as

the appellant) turned toward Mr. Tavira and fired multiple gunshots at him.

(R.R. III:29, 84; IV:92). Mr. Tavira fell to the ground and died while the

appellant ran away. (R.R. III:87; IV:93).

Brian Mason observed the appellant running near his house, which was

not far from the Southgate Manor Apartments. (R.R. IV:35). The appellant

seemed excited or startled. (R.R. IV:36). The appellant asked for help, but Mr.

Mason and his friends ran him off. (R.R. IV:36).

Rashad Holloway, another childhood friend, picked up the appellant off

Seminary Drive near Brian Mason’s house and drove him to Ms. Olvera’s

apartment. (R.R. IV:54, 56-57, 65-66). The appellant was “amped up” when

Mr. Holloway arrived. (R.R. IV:64). The two men waited at Ms. Olvera’s

apartment until she arrived home. (R.R. IV:59, 120).

3 The appellant would not tell Ms. Olvera where he had left her car, but

said that Mr. Holloway would take her to it. (R.R. IV:59, 120). Mr. Holloway

drove Ms. Olvera to a location near the Southgate Manor Apartments where

the appellant had parked her car. (R.R. IV:59-60, 122-23).

That night, the appellant told Ms. Olvera that he had done “something

stupid”. (R.R. IV:119). He later told her that he went to the apartment

complex to rob someone, but became scared when he thought the man

recognized him and pulled the trigger. (R.R. IV:128-29).

The police recovered fifteen latent fingerprints from a white Mercury

Cougar parked in the Southgate Manor Apartments parking lot near Ms.

Rodriguez’ truck. (R.R. IV:150). Nine fingerprints matched the appellant, one

fingerprint matched Mr. Tavira, and the remaining five fingerprints were

inconclusive. (R.R. IV:211-13).

Deputy Medical Examiner Marc Krouse conducted an autopsy on Mr.

Tavira’s body. (R.R. V:76). Dr. Krouse determined that Mr. Tavira was struck

by four gunshots, and he recovered three projectiles from his body. (R.R.

V:78-79). Mr. Tavira suffered the following wounds from these gunshots:

1. A graze wound to his right shoulder which damaged his skin;

4 2. An entry wound at the base of his neck just above the collarbone which caused a lethal injury to his aorta;

3. An entry wound to his left lower axilla below his armpit which damaged his bowels; and

4. An entry wound to his left elbow which fractured his upper arm bone.

(R.R. V:80-83). Dr. Krouse classified Mr. Tavira’s death as a homicide caused

by the gunshot wound above his collarbone with contribution from the

gunshot wound to his abdomen. (R.R. V:83-84).

The appellant denied shooting Islander Tavira or even being present

during this shooting. (R.R. V:60). He admitted being in Ms. Patterson’s

apartment at the Southgate Manor Apartments late that afternoon to sell

Floyd McCoy drugs and a .22 Ruger revolver. (R.R. V:62-64). The appellant

then said he left for a nearby apartment complex. (R.R. V:65).

The appellant further testified that he later got into a physical

altercation with Mr. McCoy after he complained that the .22 Ruger revolver

did not work. (R.R. V:72). After a brief fight, the appellant stated that he ran

towards Mr. Mason’s house. (R.R. V:72).

5 SUMMARY OF STATE'S REPLIES

Sufficiency:

Sufficient evidence supports the appellant’s capital murder conviction;

specifically, evidence establishes that he intentionally killed Islander Tavira

while in the course of robbing or attempting to rob him.

Jury Charge - Capital Murder Instruction:

The trial court properly defined capital murder, including its intentional

culpable mental state. Alternatively, any error regarding the trial court’s

definition did not cause the appellant egregious harm.

Jury Charge - Felony-Murder Instruction:

The trial court was not required to sua sponte instruct the jury on the

lesser offense of felony-murder.

Jury Charge - Possible Doubt Instruction:

The trial court did not err by instructing the jury that the prosecution

was not required to prove guilt beyond all possible doubt.

6 Admission of Text Messages:

The trial court properly admitted text messages between the appellant

and his brother because their probative value was not substantially

outweighed by the danger of unfair prejudice. Alternatively, any error is not

reversible.

7 STATE'S REPLY TO APPELLANT'S POINT OF ERROR NUMBER ONE: SUFFICIENCY

Appellant's Contention:

The appellant contends that the evidence is insufficient to support his

conviction because the evidence does not establish that he committed the

murder in the course of committing robbery or aggravated robbery and

because there was no evidence of a specific intent to kill.

State's Reply:

Sufficient evidence supports the appellant’s capital murder conviction;

specifically, evidence establishes that he intentionally killed Islander Tavira

Arguments and Authorities:

A. Standard of Review

In reviewing a sufficiency complaint, the appellate court should examine

the evidence in the light most favorable to the verdict to determine whether

any rational factfinder could have found the alleged offense’s essential

elements beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 902,

8 912 (Tex. Crim. App. 2010). Direct evidence of the elements of the offense is

not required. Hooper v. State, 214 S.W.3d 9, 14 (Tex. Crim. App. 2007). Juries

are permitted to make multiple reasonable inferences from the evidence

presented at trial, and circumstantial evidence is as probative as direct

evidence in establishing the guilt of an actor. Hooper v. State, 214 S.W.3d at

14–16.

Circumstantial evidence is as probative as direct evidence in

establishing a defendant’s guilt, and circumstantial evidence alone can be

sufficient. Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). In

circumstantial cases, it is not necessary that every fact and circumstance point

directly and independently to the defendant's guilt; rather, it is enough if the

conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. Acosta v. State, 429 S.W.3d at 625.

The jury as factfinder is the sole judge of the weight and credibility of

the evidence presented, and is free to believe or disbelieve any testimony. See

Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 556

U.S. 1211, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009); Wyatt v. State, 23 S.W.3d

18, 30 (Tex. Crim. App. 2000). The appellate court presumes that the jury

resolved any conflicting inferences in favor of the prosecution, and defers to

9 that resolution. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

So long as the verdict is supported by a reasonable inference, it is within the

jury’s province to choose which inference is most reasonable. Laster v. State,

275 S.W.3d 512, 523-24 (Tex. Crim. App. 2009).

B. Sufficient Evidence Murder Occurred in Course of Robbery or Attempted Robbery

A person commits capital murder if he intentionally commits murder in

the course of committing or attempting to commit kidnapping, burglary,

robbery, aggravated sexual assault, arson, obstruction or retaliation. Tex.

Penal Code §19.03(a)(2). A person commits robbery if, in the course of

committing theft and with intent to obtain or maintain control of the property,

he intentionally, knowingly, or recklessly causes bodily injury to another; or

he intentionally or knowingly threatens or places another in fear of imminent

bodily injury or death. Tex. Penal Code §29.02(a). A person commits an

offense if, with specific intent to commit an offense, he does an act amounting

to more than mere preparation that tends but fails to effect the commission of

the offense intended. Tex. Penal Code §15.01(a).

Since committing murder and an unrelated taking or attempted taking

10 of property do not alone constitute capital murder, the State must prove a

nexus between the murder and the theft or attempted theft. See Ibanez v.

State, 749 S.W.2d 804, 807 (Tex. Crim. App. 1986). The robbery statute

defines the phrase “in the course of committing theft” as “conduct that occurs

in an attempt to commit, during the commission, or in immediate flight after

the attempt or commission of theft”. Tex. Penal Code §29.01(1). This same

definition of “in the course of committing” applies to the capital murder

statute. Ibanez v. State, 749 S.W.2d at 807. Thus, the State must show that

the murder occurred during the commission or attempted commission of the

underlying theft or while in immediate flight therefrom. See Ibanez v. State,

749 S.W.2d at 807.

A capital murder offense is not temporally limited to the time during

which the defendant committed the robbery. White v. State, 2011 WL

3612213, at *5 (Tex. App. - El Paso August 17, 2011, no pet.) (not designated

for publication), citing Garrett v. State, 851 S.W.2d 853, 856 (Tex. Crim. App.

1993). A capital murder’s chronology includes the moments of the

defendant’s flight from the scene immediately following the robbery’s

commission. White v. State, 2011 WL 3612213, at *5.

11 The following evidence demonstrates a clear nexus between the

attempted robbery and the fatal shooting:

• A short African-American man dressed in black clothes and with a mask covering his face approached Mr. Tavira from a breezeway at the Southgate Manor Apartments. (R.R. III:28, 37, 74-76).

• The man pointed his gun at Mr. Tavira and demanded money. (R.R. III:28-29, 77-79).

• Mr. Tavira told the man that he did not have any money, but the man repeated his request. (R.R. III:78).

• At this point, Ms. Rodriguez’ young son, Jovani, darted past the man towards their apartment. (R.R. III:28, 79).

• The man chased after Jovani through the breezeway with Mr. Tavira and Ms. Rodriguez in pursuit. (R.R. III:28-29, 80-81).

• At this point, the man (identified by Mechelle Patterson as the appellant) turned toward Mr. Tavira and fired multiple gunshots at him. (R.R. III:29, 84; IV:92).

• Mr. Tavira fell to the ground and died while the appellant ran away from the apartment complex. (R.R. III:87; IV:93).

• The appellant told his girlfriend, Beatrice Olvera, that he shot Mr. Tavira because he thought that he recognized him. (R.R. IV:128- 29).

In sum, this evidence demonstrates that the appellant murdered Islander

Tavira while in the course of attempting to rob him or in his immediate flight

therefrom. See White v. State, 2011 WL 3612213, at *5 (evidence that

12 defendant shot victim as he was fleeing the scene of a robbery sufficient to

establish capital murder).

The State must further show that the defendant’s intent to rob was

formulated before or at the time of the murder. Herrin v. State, 125 S.W.3d

436, 441 (Tex. Crim. App. 2002); Conner v. State, 67 S.W.3d 192, 197 (Tex.

Crim. App. 2001). In other words, if a jury can rationally conclude that the

defendant formed his intent to obtain control over the victim's property

before or during the commission of the murder, the evidence will support a

conclusion that the murder occurred in the course of robbery. See Hernandez

v. State, 969 S.W.2d 440, 444 (Tex. App. - San Antonio 1998, pet. refused).

The following evidence shows that the appellant planned this robbery

before he shot and killed Islander Tavira:

• The appellant was intrigued with Brian Mason’s son’s black Halloween mask, and asked Mr. Mason if he could have the mask. (R.R. IV:33-34).

• After meeting with Floyd McCoy, the appellant decided to use his .22 Ruger revolver to rob someone. (R.R. IV:85-86).

• The appellant and Mr. McCoy went into the breezeway where he waited for someone to pass by them. (R.R. IV:87-88).

• The appellant came from the breezeway, approached Mr. Tavira in the parking lot, pointed his gun at him, and demanded money. (R.R. III:28-29, 74-79).

13 • The appellant subsequently came running from the breezeway into the apartment courtyard where he turned toward Mr. Tavira and fired multiple gunshots at him. (R.R. III:29, 84; IV:92).

• Mr. Tavira fell to the ground and died while the appellant ran away from the apartment complex. (R.R. III:87; IV:93).

Put simply, the appellant formulated his robbery intent before Mr. Tavira’s

murder. See Whitaker v. State, 977 S.W.2d 869, 873 (Tex. App. - Beaumont

1998, pet. refused) (testimony that defendant and others planned robbery

beforehand establishes that he formulated robbery plan before murder

occurred); Strickland v. State, 2012 WL 955374, at 6-7 (Tex. App. - Fort

Worth March 22, 2012, no pet,) (not designated for publication) (evidence

that defendant, armed with a loaded weapon, entered motel room with intent

to commit theft shows he formulated robbery plan before murder occurred).

See also Hall v. State, 970 S.W.2d 137, 141-42 (Tex. App. - Amarillo 1998, pet.

refused) (contemporaneous theft from murder victim sufficient to establish

that defendant had intent to rob at the time of the murder).

C. Sufficient Evidence of Intent to Kill

A person commits capital murder if he intentionally commits murder in

the course of committing or attempting to commit kidnapping, burglary,

14 robbery, aggravated sexual assault, arson, obstruction or retaliation. Tex.

Penal Code §19.03(a)(2). Capital murder is a “result of conduct” offense,

which means the culpable mental state relates to the result of the conduct –

causing the murder. Mays v. State, 318 S.W.3d 368, 387 (Tex. Crim. App.

2010), cert. denied, 562 U.S. 1274, 131 S.Ct. 1606, 179 L.Ed.2d 3513 (2011).

Put another way, capital murder requires an intent to kill. See Threadgill v.

State, 146 S.W.3d 654, 665 (Tex. Crim. App. 2004).

Direct evidence of intent is not required. Hart v. State, 89 S.W.3d 61, 64

(Tex. Crim. App. 2002); Reyes v. State, ____ S.W.3d ____, 2015 WL 7008130, at

*5 (Tex. App. - Fort Worth November 12, 2015). A defendant’s intent may be

inferred from his acts, words and conduct. Reyes v. State, 2015 WL 7008130,

at *5; Charlton v. State, 334 S.W.3d 5, 12 (Tex. App. - Dallas 2008, no pet.).

The jury may consider events that occurred before, during, and after the

offense in determining intent. Pitonyak v. State, 253 S.W.3d 834, 844 (Tex.

App. - Austin 2008, pet. refused). Finally, jurors are free to use their common

sense and apply common knowledge, observation, and experience gained in

the ordinary affairs of life when giving effect to the inferences that may

reasonably be drawn from the evidence. See Obigbo v. State, 6 S.W.3d 299,

305 (Tex. App. - Dallas 1999, no pet.); Wawrykow v. State, 866 S.W.2d 87, 88–

15 89 (Tex. App. - Beaumont 1993, pet. refused).

The following evidence supports the jury’s finding that the appellant

intentionally committed this capital murder:

• The appellant planned an armed robbery to obtain some money. (R.R. IV:85).

• Armed with his .22 Ruger revolver, the appellant waited in a breezeway for a passerby. (R.R. IV:87-88).

• The appellant pointed his gun at Islander Tavira and twice demanded money. (R.R. III:28-29, 77-79).

• While chasing after young Jovani Rodriguez, the appellant turned toward Mr. Tavira and fired multiple gunshots at him. (R.R. III:28- 29, 79-81, 84; IV:92-93).

• Mr. Tavira was struck by four gunshots of which three entered his body. (R.R. V:78-79).

• Mr. Tavira died from a fatal gunshot wound at the base of his neck just above his collarbone which lacerated his aorta. (R.R. V:80-81, 83-84).

• The appellant told Beatrice Olvera that he shot Mr. Tavira because he thought that he recognized him. (R.R. IV:128-29).

Given this evidence, the jury rationally concluded that the appellant

intentionally caused Mr. Tavira’s death. See Mosley v. State, 983 S.W.2d 249,

251-55 (Tex. Crim. App. 1998) (finding that capital murder defendant

intentionally caused victim's death supported by evidence he planned the

16 robbery, brought a firearm to accomplish the robbery, and shot victim in the

back of the head from a short distance), cert. denied, 526 U.S. 1070, 119 S.Ct.

1466, 143 L.Ed.2d 550 (1999); Hicks v. State, 2015 WL 4462277, at *16-17

(Tex. App. - Dallas July 21, 2015, pet. refused) (not designated for publication)

(evidence that defendant shot victim in the head at close range sufficient for

jury to conclude that he intended to cause victim’s death); Linden v. State,

347 S.W.3d 819, 822 (Tex. App. - Corpus Christi-Edinburg 2011, pet. refused)

(evidence that defendant fired four shots hitting victim in the back of head

and neck sufficient to support jury’s intent to kill finding).

A jury may also infer a defendant’s intent to kill from his use of a deadly

weapon, unless it would be unreasonable to infer that death or serious bodily

injury could result from its use. Jones v. State, 944 S.W.2d 642, 647 (Tex.

Crim. App. 1996), cert. denied, 522 U.S. 832, 118 S.Ct. 100, 139 L.Ed.2d 54

(1997); Reyes v. State, 2015 WL 7008130, at *5; Pitonyak v. State, 253

S.W.3d at 844. When a deadly weapon is fired at close range, and death

results, the law presumes an intent to kill. Sholars v. State, 312 S.W.3d 694,

703 (Tex. App. - Houston [1st Dist.] 2009, pet. refused).

There is no dispute that the a .22 Ruger revolver is a deadly weapon or

that Mr. Tavira died from the gunshot wound to his upper chest. (R.R. V:80-

17 81, 83-84). Likewise, there is ample evidence that the appellant fired this fatal

gunshot that killed Mr. Tavira. (R.R. IV:92-93). Thus, the jury had a sufficient

basis to find that the appellant had the intent to kill. See Jones v. State, 944

S.W.2d at 647 (jury may infer intent to kill from evidence that defendant

planned the robbery and brought a deadly weapon to accomplish the task);

Davis v. State, 2005 WL 2100446, at *5 (Tex. App. - Fort Worth August 31,

2005, pet. refused) (not designated for publication) (jury could infer intent to

kill from fact that defendant employed a handgun in his attempt to rob the

victim).

The appellant denied shooting Islander Tavira or even being present at

the Southgate Manor Apartments when Mr. Tavira was shot. (R.R. V:60). The

jury, however, was free to disbelieve this testimony. See Wyatt v. State, 23

S.W.3d at 30 (jury may believe or disbelieve any testimony in its role as the

exclusive judge of the credibility of witnesses and the weight to be given their

testimony).

Furthermore, other evidence undercuts the appellant’s denials:

• The appellant formulated a robbery plan in order to obtain some money. (R.R. IV:85-86).

• Armed with his .22 Ruger revolver, the appellant waited in the breezeway of the Southgate Manor Apartments for a potential

18 victim. (R.R. IV:87-88).

• The appellant approached Islander Tavira from the breezeway, pointed his gun at him, and twice demanded money. (R.R. III:28- 29, 74-79).

• When young Jovani Rodriguez darted by, the appellant began chasing him. (R.R. III:28-29, 79-80).

• The appellant turned and fired multiple gunshots at Mr. Tavira. (R.R. III:29, 84; IV;92-93).

• Mr. Tavira died from one of these gunshot wounds. (R.R. V:80-81, 83-84).

• The appellant fled the murder scene on foot until he was able to get Rashad Holloway to drive him home. (R.R. IV:56-57, 93).

• The appellant was “amped up” when Mr. Holloway arrived to drive him home. (R.R. IV:64).

• The appellant had Mr. Holloway drive Beatrice Olvera to a location near the Southgate Manor Apartments where he had parked her car. (R.R. IV:59-60, 120, 122-23).

• The appellant told Ms. Olvera that he went to the Southgate Manor Apartments to rob someone. (R.R. IV:128).

• The appellant told Ms. Olvera that he shot the man because he thought the man recognized him. (R.R. IV:128-29).

• The police recovered fifteen latent fingerprints from a white Mercury Cougar parked in the Southgate Manor Apartments parking lot near Ms. Rodriguez’ truck. (R.R. IV:150).

• Nine fingerprints matched the appellant, one fingerprint matched Mr. Tavira, and the remaining five fingerprints were inconclusive.

19 (R.R. IV:211-13).

Given this other evidence, the jury acted within its rights to reject the

appellant’s denials and find that he intentionally killed Islander Tavira while

in the course of attempting to rob him.

D. Conclusion

The evidence sufficiently establishes that the appellant intentionally

killed Islander Tavira while in the course of attempting to rob him or in

immediate flight therefrom.

The appellant’s point of error number one should be overruled.

20 STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO: CAPITAL MURDER INSTRUCTION

Appellant’s Contention

The appellant contends that the trial court improperly defined capital

murder too broadly by not limiting its murder definition or including a

specific intent to kill instruction.

State’s Response

The trial court properly defined capital murder, including its intentional

culpable mental state. Alternatively, any error regarding the trial court’s

Argument and Authorities

Jury charge error claims are analyzed under the two-pronged Almanza1

test:

1. Whether error exists. 2. If error exists, whether sufficient harm resulted from the error to compel reversal.

1 See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (opinion on rehearing).

21 Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). If no error exists,

the reviewing court’s analysis ends. Kirsch v. State, 357 S.W.3d 645, 649

(Tex. Crim. App. 2012).

A. Trial Court Properly Defined Capital Murder

The trial court defined the terms “capital murder” and “murder” as

follows:

Our law provides that a person commits the offense of murder if he intentionally causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

A person commits the offense of capital murder if the person intentionally commits the offense of murder in the course of committing or attempting to commit robbery.

(C.R. I:289). These definitions each tracked the statutory language for these

criminal offenses. See Tex. Penal Code §§19.02(b), 19.03(a)(2). A jury

charge which tracks the statutory language for an offense set out by the Texas

Legislature is a proper charge on the statutory issue and will not be deemed

error on the trial court’s part. Martinez v. State, 924 S.W.2d 693, 699 (Tex.

Crim. App. 1996); Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994), cert.

denied, 514 U.S. 1068, 115 S.Ct. 1701, 131 L.Ed.2d 563 (1995).

22 Capital murder requires proving a defendant’s intent to kill. See

Threadgill v. State, 146 S.W.3d at 665. In light of this requirement, the trial

court limited the culpable mental state for jury consideration of capital

murder with the following language:

if the person intentionally commits the offense of murder

(C.R. I:289).

Furthermore, abstract definitions must be examined in the context in

which the defined term appears, and cannot be limited to portions of the

charge standing alone. Turner v. State, 805 S.W.2d 423, 430 (Tex. Crim. App.

1991), cert. denied, 502 U.S. 870, 112 S.Ct. 202, 116 L.Ed.2d 162 (1991). The

application paragraph required the jury to find that the appellant intentionally

caused Mr. Tavira’s death, as follows:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of November, 2012, in Tarrant County, Texas, Jacob Jordann Bright, did then and there intentionally cause the death of an individual, Islander Tavira, by shooting him with a firearm, and the said defendant was then and there in the course of committing or attempting to commit the offense of robbery, then you will find the defendant guilty of capital murder as charged in the indictment.

(C.R. I:291).

In sum, the abstract definition of capital murder required the jury to

find that appellant intentionally committed the murder and the application

23 paragraph required the jury to find that appellant intentionally murdered

Islander Tavira; thus, the trial court’s instructions properly limited the jury’s

capital murder consideration. See Wood v. State, 2001 WL 1047073, at *7

(Tex. App. - Dallas September 13, 2001, no pet.) (not designated for

publication) (abstract definition and application paragraph requiring jury to

find intentional murder excluded jury from considering “knowingly” mental

state included in murder definition).

Finally, the capital murder statute does not require a specific intent to

kill instruction where the abstract definition and application paragraph have

limited jury consideration to intentional murder. See Wood v. State, 2001 WL

1047073, at *8.

The appellant’s point of error number two should be overruled.

B. Any Error Not Reversible

The degree of harm required for jury charge error to be reversible error

depends on whether the error was preserved in the trial court. Villareal v.

State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d at

743. The appellant did not object to the trial court’s capital murder and

murder definitions. (R.R. VI:103).

24 Unobjected-to error in the jury charge will not result in a reversal unless

it is so egregious and created such harm that the defendant did not have a fair

and impartial trial. Almanza v. State, 686 S.W.2d at 171. The actual degree of

“egregious” harm must be assayed in light of the jury charge itself, the state of

the evidence including contested issues, the argument of counsel and any

other relevant information revealed by the trial record as a whole. Almanza

v. State, 686 S.W.2d at 171.

Any error arising from the jury instruction’s abstract definitions is not

egregious because the application paragraph correctly limited the jury as

Now, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of November, 2012, in Tarrant County, Texas, Jacob Jordann Bright, did then and there intentionally cause the death of an individual, Islander Tavira, by shooting him with a firearm, and the said defendant was then and there in the course of committing or attempting to commit the offense of robbery, then you will find the defendant guilty of capital murder as charged in the indictment.

The application paragraph is the “heart and soul” of the jury charge. See

Vasquez v. State, 389 S.W.3d 361, 367 (Tex. Crim. App. 2012) (application

paragraph is that portion of the jury charge that applies the pertinent penal

law, abstract definitions, and general legal principles to the particular facts

25 and the indictment allegations). It is the application paragraph of the charge,

and not the abstract portion, that authorizes a conviction. Yzaguirre v. State,

394 S.W.3d 526, 530 (Tex. Crim. App. 2013). As explained by the Court of

Criminal Appeals:

[T]he application paragraph is what, as a practical manner, authorizes the jury to convict but is not necessarily determinative of what legally authorizes a conviction. The application paragraph is what explains to the jury, in concrete terms, how to apply the law to the facts of the case. We look at the wording of the application paragraph to determine whether the jury was correctly instructed in accordance with the indictment and also what the jury likely relied upon in arriving at its verdict, which can help resolve a harm analysis.

Yzaguirre v. State, 394 S.W.3d at 530. Where the application paragraph

correctly instructs the jury on the law applicable to the case, it mitigates

against a finding that error in the abstract portion was egregious. See Medina

v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999), cert. denied, 529 U.S. 1102,

120 S.Ct. 1840, 146 L.Ed.2d 782 (2000); Patrick v. State, 906 S.W.2d 481, 493

(Tex. Crim. App. 1995), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d

475 (1996).

The application paragraph herein specifically instructed the jury that, in

order to convict the appellant of capital murder, it must find beyond a

reasonable doubt that he intentionally caused Islander Tavira’s death. (C.R.

26 I:291). Thus, it correctly instructed the jury on the applicable law, which

militates against any egregious harm finding. See Patrick v. State, 906 S.W.2d

at 493.

The record does not establish egregious harm because there is ample

evidence showing that the appellant intentionally shot and killed Islander

Tavira:

• On November 19, 2012, the appellant borrowed Beatrice Olvera’s car and drove to the Southgate Manor Apartments on East Seminary Drive in Fort Worth, Texas. (R.R. IV:83, 115, 117).

• At the Southgate Manor Apartments, the appellant ran into Brian Mason whose son was playing with a black Halloween mask that covered his face except for eye openings. (R.R. IV:31-33).

• Intrigued, the appellant asked Mr. Mason if he could have the mask. (R.R. IV:34).

• Inside Mechelle Patterson’s apartment, the appellant formulated a robbery plan to obtain some money. (R.R. IV:85-86).

• Armed with his .22 Ruger revolver, the appellant waited in the breezeway of the Southgate Manor Apartments for a potential victim. (R.R. IV:87-88).

• About this time, Islander Tavira and Maria Rodriguez, along with two of her children, returned to the Southgate Manor Apartments with dinner from the grocery store. (R.R. III:28, 66).

• The appellant (with a mask covering his face) approached Mr. Tavira from the breezeway, pointed his gun at him, and twice demanded money. (R.R. III:28-29, 74-79).

27 • When young Jovani Rodriguez darted by, the appellant began chasing him through the breezeway with Mr. Tavira and Ms. Rodriguez in pursuit. (R.R. III:28-29, 79-81).

• The appellant then turned toward Mr. Tavira and fired multiple gunshots at him. (R.R. III:29, 84; IV:92).

• Mr. Tavira was struck by four gunshots of which three entered his body. (R.R. V:78-79).

• Mr. Tavira died from a fatal gunshot wound at the base of his neck just above his collarbone which lacerated his aorta. (R.R. V:80-81, 83-84).

• The appellant fled the murder scene on foot. (R.R. IV:93).

• Brian Mason observed the appellant running not far from the Southgate Manor Apartments. (R.R. IV:35).

• The appellant seemed excited or startled. (R.R. IV:36).

• The appellant asked for help, but Mr. Mason and his friends ran him off. (R.R. IV:36).

• Rashad Holloway picked up the appellant off Seminary Drive and drove him to the apartment he shared with Beatrice Olvera. (R.R. IV:54, 56-57, 65-66).

• The appellant was “amped up” when Mr. Holloway arrived. (R.R. IV:64).

• The appellant had Mr. Holloway drive Ms. Olvera to a location near the Southgate Manor Apartments where he had parked her car. (R.R. IV:59-60, 120, 122-23).

• The appellant told Ms. Olvera that he went to the Southgate Manor

28 Apartments to rob someone. (R.R. IV:128).

• The appellant told Ms. Olvera that he shot the man because he thought the man recognized him. (R.R. IV:128-29).

• The police recovered fifteen latent fingerprints from a white Mercury Cougar parked in the Southgate Manor Apartments parking lot near Ms. Rodriguez’ truck. (R.R. IV:150).

• Nine fingerprints matched the appellant, one fingerprint matched Mr. Tavira, and the remaining five fingerprints were inconclusive. (R.R. IV:211-13).

Finally, the appellant presents no evidence demonstrating that the jury

did not use the proper legal definitions in deciding his guilt; let alone, any

suggestion that the jury applied this definition in a manner which deprived

him of a fair and impartial trial.2

The appellant’s point of error number two should be overruled.

2 Neither the State nor the defense suggested that the jury should consider any lesser culpable mental state in deciding whether the appellant committed capital murder in Mr. Tavira’s death. (R.R. VI:104-32).

29 STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO-A: FELONY-MURDER INSTRUCTION

The appellant contends that the trial court improperly failed to include

felony murder within its murder instructions.

The trial court was not required to sua sponte instruct the jury on the

The trial court instructed the jury on the lesser offense of murder as

Our law provides that a person commits the offense of murder if he intentionally causes the death of an individual, or intends to cause serious bodily injury and commits an act clearly dangerous to human life that causes the death of an individual.

.....

Now, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of November, 2012, in Tarrant County, Texas, Jacob Jordann Bright, did then and there intentionally cause the death of an individual, Islander Tavira, by shooting him with a firearm, or intended

30 to cause serious bodily injury to Islander Tavira and committed an act clearly dangerous to human life, by shooting him with a firearm, then you will find the defendant guilty of the lesser included offense of murder.

(C.R. I:289, 292). The appellant did not request a jury instruction on the lesser

offense of felony-murder. (R.R. VI:103).

A defendant must object to the jury charge to preserve for appellate

review any errors of omissions or complaints that the trial court failed to

charge on issues arising from the facts. See Posey v. State, 966 S.W.2d 57, 61

(Tex. Crim. App. 1998) (trial court has no duty to sua sponte instruct on

defense issues); Tex. Code Crim. Proc. art. 36.14. The appellant did not

preserve this issue by requesting a jury instruction on felony-murder. See

Montez v. State, 2006 WL 916437, at *5 (Tex. App. - Houston [14th Dist.] April

6, 2006, pet. refused) (not designated for publication) (defendant has not

preserved any argument for inclusion of a felony-murder instruction where

he never requested a charge on felony murder; only an instruction on the

lesser-included offense of murder).3

The appellant’s point of error number two-a should be overruled.

3 See also Blanton v. State, 2004 WL 3093219, at *12 (Tex. Crim. App. 2004) (defendant has not preserved for trial court’s failure to instruct on felony murder for appellate review where he only requested an instruction on the lesser-included offense of murder).

31 STATE’S REPLY TO APPELLANT’S POINT OF ERROR NUMBER TWO-B: POSSIBLE DOUBT INSTRUCTION

The appellant contends that the trial court improperly instructed the

jury that the prosecution was not required to prove guilt beyond all possible

doubt.

The trial court did not err by instructing the jury that the prosecution

The trial court instructed the jury as follows:

It is not required that the prosecution prove guilt beyond all possible doubt. It is required that the prosecution's proof excluded all ‘reasonable doubt’ concerning the defendant's guilt

This instruction merely notes that reasonable doubt does not mean all

possible doubt, and is not an erroneous “reasonable doubt” definition.

Vosberg v. State, 80 S.W.3d 320, 324 (Tex. App. - Fort Worth 2002, pet.

32 refused); Matthews v. State, ___ S.W.3d ___, 2015 WL 4076960, at *1 (Tex. App.

- Fort Worth July 2, 2015, no pet.). There is no reason for this Court to change

its long-standing holding that this instruction is not erroneous. See Vosberg

v. State, 80 S.W.3d at 324; Matthews v. State, 2015 WL 4076960, at *1.

The appellant’s point of error number two-b should be overruled.4

4 The appellant did not object to this jury instruction and makes no showing that its inclusion caused him egregious harm or denied him a fair and impartial trial. See Almanza v. State, 686 S.W.2d at 171.

33 STATE'S REPLY TO APPELLANT'S POINT OF ERROR NUMBER THREE: ADMISSION OF TEXT MESSAGES

The appellant contends that the trial court improperly admitted text

messages into evidence.

The trial court properly admitted text messages between the appellant

and his brother because their probative value was not substantially

outweighed by the danger of unfair prejudice. Alternatively, any error is not

The trial court admitted a series of text messages between the appellant

and his brother “Shawn” 5, in which “Shawn”:

• Instructs the appellant to get a different phone;

• Tells the appellant that he can “get away with this”;

5 “Shawn” was previously identified as the appellant’s brother, Thaddeus Shawn Mayfield. (R.R. V:65-66).

34 • Informs the appellant that he intends to make sure that “nobody talkin”; and

• Inquires if anyone saw the appellant, to which the appellant replies “No”.

(R.R. VII:State’s Exhibits #76-85).

A. Proper Admission of the Text Messages

A trial court may exclude evidence if its probative value is substantially

outweighed by the danger of unfair prejudice. Tex. R. Evid. 403. By using the

term “may”, this rule’s draftsman intended that the trial court be given very

substantial discretion in balancing the probative value on the one hand and

the unfair prejudice on the other, and that the trial court should not be

reversed simply because an appellate court believes that it would have

decided the matter differently. Powell v. State, 189 S.W.3d 285, 288–89 (Tex.

Crim. App. 2006); State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App.

2005). Put another way, decisions involving admission of evidence are

reviewed under an abuse of discretion standard and an appellate court should

not reverse the trial court's ruling as long as it is at least within the “zone of

reasonable disagreement”. Montgomery v. State, 810 S.W.2d 372, 391-92

(Tex. Crim. App. 1991).

35 Relevant evidence is presumed to be more probative than prejudicial,

and such evidence should be excluded under rule 403 only if there is a “clear

disparity between the degree of prejudice of the offered evidence and its

probative value.” Conner v. State, 67 S.W.3d at 202 (Tex. Crim. App. 2001).

“Unfair prejudice” justifying the exclusion means more than a tendency that

the evidence will injure or prejudice a defendant’s case, which of course is the

point of introducing evidence in the first place, but refers to an undue

tendency to suggest a decision on an improper basis, commonly, though not

necessarily, an emotional one. Rogers v. State, 991 S.W.2d 263, 266 (Tex.

Crim. App. 1999); Gardner v. State, 2015 WL 4652718, at *2 (Tex. App. - Fort

Worth August 6, 2015, pet. refused); Torres v. State, 794 S.W.2d 596, 600

(Tex. App. - Austin 1990, no pet.).

In making a rule 403 determination, the factors that a trial court should

consider in balancing include:

• The probative force of the evidence;

• The State's need for the evidence;

• Any tendency to suggest a decision on an improper basis or confuse the jury, and

• The likelihood that the presentation of the evidence will consume an inordinate amount of time.

36 Gigliobianco v. State, 210 S.W.3d 637, 641–42 & n.8 (Tex. Crim. App. 2006);

State v. Mechler, 153 S.W.3d at 440.6 An analysis of these factors weigh in

favor of the trial court’s admission of these text messages.

The text messages demonstrate a consciousness of guilt by the appellant

in seeking assurances from his older brother that he can “get away” with this

murder and that no one will talk about it. (R.R. VII:State’s Exhibits #76-85).

As such, these messages have probative value. See Joseph v. State, 2013 WL

2149779, at *2 (Tex. App. - Houston [14th Dist.] May 16, 2013, pet. refused)

(not designated for publication) (text message telling accomplice “not to say

anyone’s name” indicates a consciousness of guilt), cert. denied, ___ U.S. ___, 134

S.Ct. 2140, 188 L.Ed.2d 1130 (2014).7 Thus, the “probative force” factor

weighs in favor of their admission.

6 There is no requirement that the trial court place on the record that it has conducted and completed the rule 403 balancing test in its own mind. Reyes v. State, 2015 WL 7008130, at *6; Nolen v. State, 872 S.W.2d 807, 812 (Tex. App. – Fort Worth 1994), pet. refused, 897 S.W.2d 789 (Tex. Crim. App. 1995). The fact that the judge made a proper balancing test can be implied from the record and should be presumed even if the record does not contain a discussion by the court before it overruled a defendant’s rule 403 objection. Reyes v. State, 2015 WL 7008130; Nolen v. State, 872 S.W.2d at 812.

7 See also Nelson v. State, 2015 WL 1757144, at *13 (Tex. Crim. App. April 15, 2015) (text message referencing that defendant “had done something bad” probative as consciousness of guilt), cert. denied, ____ U.S. ____, 136 S.Ct. 357, ____ L.Ed.2d ____ (2015).

37 Identity was a central issue in this case in that the appellant denied

shooting Islander Tavira or even being present at the Southgate Manor

Apartments during this fatal shooting. (R.R. V:60). The State had a need for

this evidence because these text messages indicate a consciousness of guilt.

See Joseph v. State, 2013 WL 2149779, at *2. Thus, the “need for the

evidence” factor weighs in favor of their admission.

The appellant does not articulate any undue tendency arising from the

text messages’ admission that the jury’s guilty verdict was due to an emotional

basis or some other improper basis unrelated to the facts of this capital

murder. See Appellant’s Brief, pages 39-44. Thus, the “undue tendency”

factor weighs in favor of their admission.

Finally, the presentation of this evidence was not unduly lengthy.

According to the reporter’s record time stamp, its entire presentation,

including the admissibility challenge, took less than an hour of a week-long

jury trial. (C.R. I:300; R.R. V:129-40, VI:6-24). Thus, the “length of time” factor

Considering these factors together, the trial court properly determined

that the text messages’ probative value was not substantially outweighed by

the danger of unfair prejudice; thus, it did not abuse its discretion by

38 admitting them into evidence.

The appellant’s point of error number three should be overruled.

The erroneous admission of evidence is generally non-constitutional

error and not grounds for reversal unless it affects an accused’s substantial

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

App. P. 44.2(b). Substantial rights are not affected if the reviewing court has

fair assurances that the erroneous exclusion of evidence had no influence or

only a slight influence on the jury. Motilla v. State, 78 S.W.3d 352, 355 (Tex.

Crim. App. 2002). Put another way, to be reversible, the jury must have been

“substantially swayed” by the improperly-admitted evidence. Hinds v. State,

970 S.W.2d 33, 35 (Tex. App. - Dallas 1998, no pet.). In making this

assessment, the reviewing court considers everything in the record, the

nature of the evidence supporting the verdict, the character of the alleged

error, and how it relates to other evidence in the record. Motilla v. State, 78

S.W.3d at 355.

The following evidence demonstrates that the admission of the

appellant’s text messages did not substantially sway the jury in finding that he

39 intentionally killed Islander Tavira while in the course of attempting to rob

him:

• On November 19, 2012, the appellant borrowed Beatrice Olvera’s car and drove to the Southgate Manor Apartments on East Seminary Drive in Fort Worth, Texas. (R.R. IV:83, 115, 117).

• The appellant was dressed in jeans and a black jacket. (R.R. IV:87).

• At the Southgate Manor Apartments, the appellant ran into Brian Mason whose son was playing with a black Halloween mask that covered his face except for eye openings. (R.R. IV:31-33).

• Intrigued, the appellant asked Mr. Mason if he could have the mask. (R.R. IV:34).

• While inside Mechelle Patterson’s apartment, the appellant formulated a robbery plan to obtain some money. (R.R. IV:85-86).

• Armed with his .22 Ruger revolver, the appellant waited in the breezeway of the Southgate Manor Apartments for a potential victim. (R.R. IV:87-88).

• About this time, Islander Tavira and Maria Rodriguez, along with two of her children, returned to the Southgate Manor Apartments with dinner from the grocery store. (R.R. III:28, 66).

• The appellant (with a mask covering his face) approached Mr. Tavira from the breezeway, pointed his gun at him, and twice demanded money. (R.R. III:28-29, 74-79).

• When young Jovani Rodriguez darted by, the appellant began chasing him through the breezeway with Mr. Tavira and Ms. Rodriguez in pursuit. (R.R. III:28-29, 79-81).

40 • The appellant then turned toward Mr. Tavira and fired multiple gunshots at him. (R.R. III:29, 84; IV:92).

• Mr. Tavira died from one of these gunshot wounds. (R.R. V:80-81, 83-84).

• Brian Mason observed the appellant running near his house, which was not far from the Southgate Manor Apartments. (R.R. IV:35).

• The appellant asked for help, but Mr. Mason and his friends ran him off. (R.R. IV:36).

• Rashad Holloway picked up the appellant off Seminary Drive near Brian Mason’s house and drove him to the apartment he shared with Beatrice Olvera. (R.R. IV:54, 56-57, 65-66).

• The appellant was “amped up” when Mr. Holloway arrived. (R.R. IV:64).

• The appellant had Mr. Holloway drive Beatrice Olvera to a location near the Southgate Manor Apartments where he had parked her car. (R.R. IV:59-60, 120, 122-23).

• The appellant told Ms. Olvera that he went to the Southgate Manor Apartments to rob someone. (R.R. IV:128).

• The appellant told Ms. Olvera that he shot the man because he thought the man recognized him. (R.R. IV:128-29).

• The police recovered fifteen latent fingerprints from a white Mercury Cougar parked in the Southgate Manor Apartments parking lot near Ms. Rodriguez’ truck. (R.R. IV:150).

41 • Nine fingerprints matched the appellant, one fingerprint matched Mr. Tavira, and the remaining five fingerprints were inconclusive. (R.R. IV:211-13).

• Mr. Tavira was struck by four gunshots of which three entered his body. (R.R. V:78-79).

• Mr. Tavira died from a fatal gunshot wound at the base of his neck just above his collarbone which lacerated his aorta. (R.R. V:80-81, 83-84).

Thus, the appellant’s substantial rights were not affected by the admission of

these text messages.

The appellant’s point of error number three should be overruled.

42 CONCLUSION AND PRAYER

The appellant suffered no reversible error. Therefore, the State prays

that his conviction and sentence be affirmed.

Respectfully submitted,

SHAREN WILSON Criminal District Attorney Tarrant County, Texas

/s/ Steven W. Conder STEVEN W. CONDER, Assistant Criminal District Attorney 401 W. Belknap Fort Worth, Texas 76196-0201 (817) 884-1687 FAX (817) 884-1672 State Bar No. 04656510 COAAppellatealerts@tarrantcountytx.gov

MICHELE HARTMANN, Assistant Criminal District Attorney

CERTIFICATE OF SERVICE

True copies of the State's brief have been electronically served on

opposing counsel, the Hon. William R. Biggs (wbiggs@williambiggslaw.com),

115 West Second Street, Suite 202, Fort Worth, Texas 76102, on this, the 20th

day of November, 2015. 43 /s/ Steven W. Conder STEVEN W. CONDER

CERTIFICATE OF COMPLIANCE

This document complies with the typeface requirements of Tex. R. App.

P. 9.4(e). It has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes. This document complies with the

word-count limitations of Tex. R. App. P. 9.4(i). It contains approximately

7747 words, excluding those parts exempted, as computed by Microsoft Office

Word 2010.

/s/ Steven W. Conder STEVEN W. CONDER

c18.bright jacob jordann.br