In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-23-00387-CR ________________
JAMES LOUIS BARNES JR., Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 21-03-03120-CR ________________________________________________________________________
MEMORANDUM OPINION
Appellant James Louis Barnes Jr. appeals his conviction for capital murder.
See Tex. Penal Code Ann. § 19.03(a)(2). In four issues, Barnes complains about the
sufficiency of the evidence and the admission of a jail call, extraneous offense
evidence, and identification evidence. We conclude the evidence was legally
sufficient to support the jury’s guilty verdict; the State presented sufficient evidence
to support a reasonable jury determination that the jail call was authentic; the
extraneous offense was admissible as same transaction contextual evidence; and that
1 Barnes failed to preserve his complaints about the pretrial identification procedure’s
being impermissibly suggestive. We affirm the trial court’s judgment.
BACKGROUND
The indictment alleged that Barnes “did then and there intentionally cause the
death of an individual, namely, [Michael], by shooting [Michael] with a deadly
weapon, namely a firearm, and the defendant was then and there in the course of
committing or attempting to commit the offense of robbery of [Michael][.]” 1 During
a pretrial hearing, the trial court considered the State’s bench brief regarding the
admission of an extraneous offense involving an attempted aggravated robbery of a
meat market in Waller County that occurred within hours of the current offense. The
State explained that the extraneous offense involved two black males, a skinny and
heavy-set one, who drove up to the meat market in a black sedan. Surveillance video
from the meat market showed the two-armed males tried to enter the meat market
and commit aggravated robbery. The heavy-set male had a wide-stock tan pistol and
wore black pants or shorts under his tan pants, which had a distinctive emblem, and
a black full-face mask, boots, and gloves.
The State explained the current offense occurred at a taco stand about four
hours after the extraneous offense and involved a skinny and heavy-set male who
1 To protect the privacy of the victim, his wife, and the civilian witnesses, we identify them by using pseudonyms. See Tex. Const. art. I, § 30. 2 were armed and demanded money and jewelry from Michael and his wife, Gina. The
heavy-set male wore dark clothes and a mask and used a black pistol to shoot
Michael in the head. The two males fled and left a .40 caliber cartridge casing at the
scene. About an hour later, the police stopped Barnes, who was wearing a black
hooded sweatshirt and shorts and driving a sedan like the one used in the extraneous
offense. The police found tan pants with a distinctive emblem like the ones worn
during the extraneous offense in the sedan, and Michael could not be excluded as a
contributor to the bloodstain found on the tan pants. The police also found a live .40
caliber round that matched the cartridge casing found at the scene of the current
offense and the tan wide-stock pistol like the one used in the extraneous offense.
The State argued the extraneous offense was admissible as same-transaction
contextual evidence and because it was relevant to prove Barnes’s identity and
intent. The State explained that they did not have a witness who was able to testify
that Barnes was wearing the tan pants during the current offense, and the admission
of the extraneous offense was necessary for the jury to understand the current offense
was part of a crime spree that involved two offenses that occurred in close locations
within a short period of time. The State argued the extraneous offense would help
the jury understand why Michael’s DNA was on the tan pants and that the tan wide-
stock pistol was used in the extraneous offense. The State also argued that Barnes’s
DNA was on the inside waistband of the pants which showed Barnes wore those
3 pants during the extraneous offense. The State noted that a magistrate found
probable cause to issue a warrant for Barnes’s arrest for the extraneous offense.
Defense counsel objected that the extraneous offense was inadmissible based
on Rules 403 and 404(b) of the Texas Rules of Evidence. See Tex. R. Evid. 403,
404(b). Barnes argued the extraneous offense was confusing and misleading to the
jury and was more prejudicial than probative. Barnes complained that the pants with
Michael’s DNA and the .40 caliber cartridge casing found on the passenger side of
the sedan Barnes was driving served no purpose for identification.
The trial court allowed the State to present evidence of the attempted
aggravated robbery and to refer to it during opening statements. The trial court
explained that it did not consider the attempted aggravated robbery to be an
extraneous offense because it was closely related in time and the State planned to
use its surrounding circumstances to prove a main fact in the current case. The trial
court found that based on the State’s reasons, the probative value of the evidence
was not substantially outweighed by the danger of unfair prejudice.
The trial court conducted a jury trial. Detective Byron Fausset of the Waller
County Sheriff’s Office testified that it was around 9:00 p.m. on December 5, 2020,
when he responded to an attempted aggravated robbery at a meat market located
near the Montgomery County line. Fausset stated the meat market had a surveillance
video of the attempted robbery, and the trial court admitted the video and still shots
4 into evidence. Fausset explained that the video shows a dark four-door sedan
backing into the parking lot and two males–a thinner one wearing athletic pants and
one wearing khaki pants–running towards the door. The male with khaki pants, who
was either a light-skinned black male or Hispanic, drove the sedan and wore a dark
top, black combat boots, black shorts or underwear, and a ski mask that only showed
his eyes and mouth. Fausset explained the khaki pants were falling and had a brand
label on the right hip area he could not identify. Fausset stated that both males had
handguns and after the male with athletic pants pulled on the front door, both fled to
the sedan and left.
Wayne was working at the meat market when the attempted aggravated
robbery occurred. Wayne explained the door was locked because the store had been
robbed before. Wayne saw two men, who had their faces covered, approach the door
and leave after one of the men, who had a gun, tried to open the door. Wayne testified
that the cashier called 911 and then reported the incident to security.
Deputy Austin Porter of the Montgomery County Sheriff’s Office testified
that around 1:00 a.m. he responded to a call about an assault with a firearm at the
taco stand. Porter testified that Michael had a gunshot wound and died shortly after
he arrived, and he spoke with Gina and her son, Richard, about the incident and
photographed the scene.
5 Richard testified that he was at home when he heard a loud boom and Gina
yell, so he grabbed his gun and ran to Gina, who told him to talk to 911. Richard
explained that Gina did not speak English, so he spoke with the dispatcher and
reported that Michael was shot in the head. The trial court admitted the 911 call into
evidence. Richard testified that Gina provided a description of the shooter to the
police, and he found an Instagram photo of a man matching that description and
showed it to Gina, who identified the man as the shooter.
Defense counsel objected to the admission of the photo, which was marked as
State’s Exhibit 32 and which purportedly showed Barnes and two other males
pointing guns at the camera. Defense counsel argued the photo was inadmissible
under Rule 403 and 404 because it was more prejudicial than probative and would
inflame or mislead the jury. The State argued that identity was a central issue, and
Richard had knowledge of Barnes’s gang and heard that Barnes might be responsible
for a series of aggravated robberies. The State argued that it was laying the
foundation for Gina’s out-of-court identification of Barnes to Richard, and that
Richard’s testimony about Gina’s identification was not hearsay under Rule 801.
Defense counsel objected that it was hearsay under these circumstances.
After reviewing Rule 801(e)(1)(c), which provides that a prior statement
identifying a person as someone the declarant-witness perceived earlier is not
hearsay when the declarant testifies and is subject to cross-examination, the trial
6 court overruled defense counsel’s objection and admitted State’s exhibit 32. See Tex.
R. Evid. 801(e)(1)(c). Richard testified that State’s exhibit 32 is the Instagram photo
he found a couple of days after the shooting, and that Gina identified the man on the
right with afro hair as the person who killed Michael. Richard stated before he found
the photo, he did not know Barnes or that Barnes was in custody, but he knew
another man in the photo. Richard testified that he believed that Barnes was the man
dressed in khaki pants in the still photo taken from the surveillance video at the meat
market, but he conceded it was difficult to see anything in the photo since it was so
dark.
Gina testified that she and Michael were working in the storage room when
two dark race men–one chubby and one skinny–appeared at the door. Gina testified
that they each had a gun, and both were dressed in black and wore gloves and masks.
Gina explained that the chubby man was wide and had big hair and a belly, and she
could see most of his face because his mask was stretched out. Gina identified Barnes
as the chubby man, and she testified that she had no trouble recognizing Barnes
because she kept looking at his face during the incident to help the police catch him.
Gina testified that Barnes pointed his black pistol at Michael, who gave Barnes his
wallet, and the skinny man pointed his gun at her and she gave him everything she
had. Gina stated that when she heard a shot, she pushed the gun from the skinny man
and went towards the freezer. Gina explained they both had their hands on the gun
7 when the skinny man fired a shot that went inside the freezer. Gina testified that after
Barnes was arrested, she identified Barnes in the Instagram photo Richard showed
her, but she could not identify Barnes with 100% certainty in the photo lineups the
police showed her.
Detective Felix Cantu Jr. of the Montgomery County Sheriff’s Office testified
that he assisted in Michael’s homicide investigation by conducting photo lineups.
Cantu showed Gina six sets of photo lineups. Cantu explained that Gina failed to
make a positive identification in photo lineup five, which was the only lineup
containing Barnes’s photograph, but Gina selected Barnes’s photo and explained he
had similar characteristics as the shooter but was not 100% certain he was the
shooter.
Erin Burleson, a crime scene investigator with the Montgomery County
Sheriff’s Office, testified that she assisted in the investigation and collected a fired
bullet from a blender box and a PMC .40 caliber Smith & Wesson fired cartridge
casing on the floor under a file cabinet. Burleson also collected a fired bullet from
the freezer.
Sergeant Thomas Landrum with the Magnolia Police Department testified that
after he received a Waller County call to be on the lookout for a dark-colored sedan
involved in an attempted aggravated robbery of a meat market and a Montgomery
County call about a murder at the taco stand, he stopped a vehicle matching the
8 description for speeding around 2:00 a.m. Landrum explained he waited for Officer
Marc Payne because the sedan had possibly been involved in robberies and a murder.
Landrum identified Barnes, who was the driver and sole occupant, and stated that
Barnes was wearing a black hooded sweatshirt, an undershirt, shorts, socks, and
sandals. Barnes consented to a search of the sedan, and they found evidence
consistent with the information provided in the two calls. Landrum testified they
found a pair of khaki pants; dark boots; a live .40 caliber Smith & Wesson round
and a fired cartridge casing; a full-metal-jacket bullet, a .380 MAC-10 style gun, and
marijuana.
Officer Marc Payne with the Magnolia Police Department testified that he was
wearing a body camera when he assisted Landrum with the traffic stop, and the trial
court admitted Payne’s body-camera video into evidence. Payne testified he
obtained Barnes’s consent to search the sedan, which was not registered to Barnes.
Payne searched the sedan and found the items about which Landry had also testified.
Payne testified that Barnes said the khaki pants were his work pants. After Deputy
Tiffany Fry arrested Barnes for possession of marijuana, Payne transported him to
the jail. Payne seized Barnes’s cell phone to preserve evidence.
Deputy Tiffany Fry of the Montgomery County Sheriff’s Office testified that
she assisted with Barnes’s traffic stop because of the sedan’s potential involvement
in a series of robberies and murder. Fry testified the sedan was registered to Barnes’s
9 girlfriend. Fry assisted in the search of the sedan and found a .40 caliber Winchester
fired cartridge casing in the sedan and a .380 weapon without a clip or magazine.
Fry explained they also found a live .40 caliber round in the sedan, but she did not
know if it matched the PMC .40 caliber fired cartridge casing found at the taco stand.
Fry testified that different brands of .40 caliber bullets can be used in the same pistol.
Fry arrested Barnes for possession of marijuana and had the vehicle towed to the
crime scene unit for processing.
On recall, Burleson, the crime scene investigator, testified she searched the
sedan and collected the tan R&D brand jeans which had red-brown stains on the
backside like a blood stain. Burleson explained she tested one of the stains which
showed a presumptive positive for the presence of blood, and she sent the pants off
for DNA testing. Burleson also collected a .380 caliber unfired cartridge casing,
Barnes’s birth certificate and temporary identification card, and a size-twelve pair
of black utility boots which had a pair of gray gloves and fingerless long sleeves
inside one boot. Burleson processed the boots, one of which had red-brown stains
which showed a presumptive positive for blood, so she swabbed the boot and sent
the swabs for DNA testing. Burleson also submitted the long sleeves and gloves for
DNA testing.
Dr. Alex John, a forensic pathologist who formerly worked as a medical
examiner in Montgomery County, testified that he conducted Michael’s autopsy and
10 determined his cause of death was a gunshot wound of the head. John testified that
Michael’s manner of death was homicide and explained that a firearm is a deadly
weapon capable of causing death or serious bodily injury. John created a DNA card
on Michael for the police so a lab could extract his DNA profile for later comparison.
Detective Michael Burnett of the Montgomery County Sheriff’s Office testified that
he collected DNA samples from Barnes and sent them to the DNA lab for testing.
Patricia Bui, a firearm and toolmark examiner with the Montgomery County
Sheriff’s Office Crime Laboratory testified that she compared the PMC .40 caliber
Smith & Wesson fired cartridge casing found under the file cabinet in the taco stand
with the .40 caliber Winchester fired cartridge casing found in the sedan. Bui
testified that her comparison showed that the fired cartridge cases were fired from
the same firearm, a .40 caliber handgun. Bui also compared the fired bullets
recovered from a blender box and freezer at the taco stand, which were both .40
caliber Smith & Wesson, and determined they were not fired from the same firearm.
Bui also determined the two fired bullets from the taco stand were not fired from the
.380 firearm found in the sedan.
Danielle Reed, a senior forensic DNA analyst, testified that she performed
DNA comparisons in Barnes’s case. Reed explained she processed Michael’s DNA
card and Barnes’s DNA swabs and generated DNA profiles of the known samples.
Reed also processed four of the stains as well as the interior waistband of the tan
11 R&D jeans to determine who wore the pants. Reed compared the DNA profile
obtained from the interior waistband with the DNA profiles from the known samples
and determined there was a mixture of three or more individuals in the DNA profile
from the tan jeans, including a major male contributor that contributed at least 75%
to the entire profile. Reed testified that Barnes’s DNA profile matched the major
male contributor from the interior waistband, and the probability of selecting an
unrelated individual with that DNA profile was at least 1 in 109 octillion in the
population of the United States.
Reed explained the partial DNA profile obtained from one of the stains on the
tan jeans matched Michael’s DNA profile, and the probability of selecting an
unrelated individual with that partial DNA profile was at least 1.1 octillion in the
population of the United States. Concerning the other three stains, which also
matched Michael’s DNA profile, Reed testified that the probability of randomly
selecting an unrelated individual with that partial DNA profile was at least 1 in 5.5
octillion in the population of the United States. Reed processed the two swabs taken
from the boot found in the sedan and generated a DNA profile that matched
Michael’s DNA profile, and the statistics were also 1 in 5.5 octillion. Reed explained
that the DNA profile obtained from the gray cloth gloves was consistent with a major
mixture component of two male contributors, and she could not exclude Barnes as a
possible contributor. The DNA profile obtained from the gray sleeves was consistent
12 with a mixture of two individuals, including a major male contributor that matched
Barnes’s DNA profile.
Martin, who was housed with Barnes at the Montgomery County Jail for four
months, testified about his criminal history and explained that he was offered a deal
to testify about what Barnes told him in jail about various robberies and the capital
murder. Martin testified that Barnes told him he killed a man while robbing a taco
stand in Montgomery County. Martin said that Barnes said he did not know if he or
his co-defendant killed the man because they both fired shots. Martin explained that
Barnes also said that the man’s wife was there when the murder occurred and that
they should have killed her because she could testify against him. Martin stated that
Barnes told him that they also tried to rob a restaurant they had robbed before, but
the people locked the doors. Martin explained he came forward because Barnes
wanted to get the woman killed and asked to use his phone to take care of it. Martin
testified that he read a letter Barnes sent with someone who went home, and in the
letter, Barnes wanted to get the woman killed.
On cross-examination, Martin testified that he was taken out of the general
population because Barnes called Barnes’s mother the night before Martin was to
testify and asked his mother where Martin was located within the jail. Martin stated
that the phone records don’t lie. Based on Martin’s testimony, the State sought to
introduce Barnes’s jail call with Barnes’s mother into evidence arguing that it
13 showed some acknowledgment of guilt. In addition, the State argued the jail call
showed Barnes asked his own mother to look up Martin’s jail location and that
Martin was moved into administrative segregation because Barnes’s mother
disclosed Martin’s location to Barnes. Defense counsel argued the jail call included
a discussion about other extraneous conduct and objected based on Rules 403 and
404. The State agreed to redact the portion regarding the other extraneous conduct.
The trial court weighed the factors under Rule 403 and determined that the jail call
related to the disputed issue of the identity of the person who committed the offense
and that no other evidence tended to accomplish that purpose. The trial court also
stated the evidence corroborated Martin’s testimony and gave him some credibility
even though he was a convicted felon witness. The trial court allowed the State to
admit the jail call into evidence and excluded the portion regarding the extraneous
offense. The trial court overruled defense counsel’s objection that the jail call
showed Barnes was in custody.
Shelton Ward, the custodian of records at the Montgomery County Jail,
testified that photographs were taken when Barnes was booked into the jail on
December 6, 2020, for possession of marijuana. Defense counsel objected to the
admission of Barnes’s booking photographs based on Rule 403. The State argued
that its need for the photographs was great because Barnes got multiple face tattoos
after his arrest and the jury might question why his description did not include facial
14 tattoos. The trial court noted there was no unfair prejudice because there was
previous testimony about Barnes being transported to jail. The trial court overruled
defense counsel’s objection and admitted the booking photos. Ward testified that
Barnes did not have any facial tattoos in his booking photographs and that he could
get tattoos in the jail. Ward testified that jail records show that Barnes and Martin
were housed together in the jail from March to June 2021.
Jerry David Stovall Jr., an investigator with the Montgomery County District
Attorney’s Office, testified that the Montgomery County Sheriff’s Office uses a
system called Securus for recording the audio of their jail calls. Stovall explained
that he could search jail calls using the inmate’s name, name number assigned to the
inmate during booking, particular jail phone location, and specific phone number.
Stovall testified he reviewed Barnes’s jail calls, and that Barnes uses his name
number and account to make the calls. Stovall explained that Barnes made many
calls, and he was familiar with the name Barnes and the voice associated with the
name in the Securus system. Stovall explained he had been listening to the jail calls
and the trial and the context of the trial matched up with the jail calls and led him to
believe that Barnes is the man on the jail calls he listened to. Stovall had also
identified Barnes’s mother in the jail calls.
Stovall testified that in a jail call made two days prior, Barnes asked his
mother if Martin was in jail. Defense counsel objected that Stovall had not
15 sufficiently identified Barnes. The State argued that Stovall had clearly identified
Barnes by his unique pin number, name, and context by explaining Barnes was
discussing the trial and a witness. The trial court overruled defense counsel’s
objection and granted defense counsel’s request for a running objection regarding
his prior overruled objections. Stovall testified that he identified a jail call Barnes
made to his mother in which he discussed Martin and made an audio recording, and
the trial court admitted the jail call into evidence. Stovall explained that Barnes asked
his mother to do an online search and find Martin’s location, which she did.
The State rested, and defense counsel moved for a directed verdict, which the
trial court denied. The jury found Barnes guilty of capital murder. The trial court
sentenced Barnes to life without parole. See Tex. Penal Code Ann. § 12.31(a)(2).
ANALYSIS
We first address Barnes’s complaint about the sufficiency of the evidence
supporting the jury’s verdict because, if sustained, it would result in rendition of a
judgment of acquittal. See Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston
[14th Dist.] 2016, no pet.); see also Tex. R. App. P. 47.1.
In evaluating legal sufficiency of the evidence to prove the charged offense,
we view all the evidence in the light most favorable to the verdict to determine
whether any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318–19
16 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see also Metcalf
v. State, 597 S.W.3d 847, 855 (Tex. Crim. App. 2020). Under the Jackson standard,
we defer to the jury’s responsibility to fairly resolve conflicting testimony, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate
facts. See Hooper, 214 S.W.3d at 13. The jury as factfinder is the sole judge of the
weight of the evidence and witnesses’ credibility, and it may believe all, some, or
none of the testimony presented by the parties. Metcalf, 597 S.W.3d at 855 (citations
omitted). We do not reweigh the evidence or determine the credibility of the
evidence, nor do we substitute our judgment for the factfinder’s. See Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). “Each fact need not point
directly and independently to a defendant’s guilt, as long as the cumulative force of
all the incriminating circumstances is sufficient to support the conviction.” Balderas
v. State, 517 S.W.3d 756, 766 (Tex. Crim. App. 2016) (citation omitted).
A person commits capital murder if he intentionally commits murder in the
course of committing or attempting to commit robbery. Tex. Penal Code Ann. §
19.03(a)(2). A person commits murder if he intentionally or knowingly causes the
death of an individual. Id. § 19.02(b)(1). A person commits the offense of 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. Id. § 29.02(a)(1). The indictment alleged that Barnes intentionally caused
17 the death of Michael by shooting Micheal with a firearm while in the course of
committing or attempting to commit the offense of robbery of Michael.
The jury heard that two men attempted to rob a meat market about four hours
before Michael was shot at the taco stand. Detective Fausset described the men, who
were in a sedan, as a skinnier one wearing athletic pants and the other wearing khaki
pants. He explained the man in khaki pants wore a mask and black clothes and boots.
The evidence showed about four hours after the meat market incident, two
dark-skinned men–one chubby and one skinny–were armed and wearing masks
when they entered the storage room behind the taco stand. Gina identified Barnes as
the chubby man and testified that he pointed his pistol at Michael, who gave up his
wallet before she heard a shot, and Detective Porter testified that Michael died from
a gunshot wound. Gina testified she struggled with the skinny man, to whom she
gave her belongings before he struggled with her and fired a shot towards the freezer.
Richard also testified that Gina identified Barnes as the shooter, and Detective Cantu
explained that Gina selected Barnes’s photo in a photo lineup and explained he had
similar characteristics as the shooter but was not 100% certain.
The jury heard that police collected evidence at the taco stand, which included
a fired bullet from a blender box, a fired bullet from the freezer, and a PMC .40
caliber Smith & Wesson fired cartridge case. The jury heard that about an hour after
Michael was shot, the police stopped Barnes, who was wearing black clothes and
18 driving a sedan matching the description from the meat market incident and the taco
stand murder. The jury also heard that after Barnes consented to a search of the
sedan, the police found a pair of khaki pants with brown stains; black boots with red-
brown stains; gray gloves; long sleeves; a live .40 caliber Smith & Wesson bullet; a
.40 caliber Winchester fired cartridge casing; a full-metal-jacket bullet; a .380 MAC-
10 style gun; and marijuana. Burleson testified that one of the stains on the khaki
pants and boots both showed a presumptive positive test for the presence of blood.
The evidence showed that the PMC .40 caliber Smith & Wesson fired cartridge
casing found at the taco stand and the .40 caliber Winchester fired cartridge casing
found in the sedan Barnes was driving were fired from the same firearm.
The jury heard that both Michael’s and Barnes’s DNA was sent to a lab for
testing. The jury also heard that a DNA analyst processed the khaki pants, and that
comparative testing showed that Barnes’s DNA profile matched the major male
contributor from the interior waistband and that Michael’s DNA profile matched
stains on the pants and boots. The analyst also explained that Barnes’s DNA profile
showed he was a major male contributor on the sleeves and that he could not be
excluded as a possible contributor on the gloves.
The jury considered Martin’s testimony that while in jail together, Barnes told
him he tried to rob a restaurant and then killed a man while robbing a taco stand and
that he should have killed the man’s wife because she could testify against him. The
19 jury also considered Martin’s testimony that Barnes wrote a letter trying to get the
man’s wife killed and had gotten information about his location from his mother.
The jury heard evidence that Martin and Barnes were housed together in jail and
Barnes’s jail call with his mother discussing Martin’s location.
Viewing all the evidence in the light most favorable to the prosecution, we
hold that a rational jury could have found beyond a reasonable doubt that Barnes
intentionally murdered Michael while committing or attempting to commit
robbery. See id. § 19.03(a)(2); Jackson, 443 U.S. at 318-19. Thus, the evidence was
legally sufficient to support the jury’s guilty verdict for the offense of
capital murder as charged in the indictment. We overrule issue two.
Authentication of Jail Call
In issue one, Barnes complains the trial court abused its discretion by
overruling his objection to the admission of the recorded jail call because the voices
were not adequately authenticated.
We review a trial court’s ruling on authentication for an abuse of
discretion. Fowler v. State, 544 S.W.3d 844, 848 (Tex. Crim. App. 2018). Under this
deferential standard, if the trial court’s ruling is within the zone of reasonable
disagreement, an appellate court must uphold the court’s admissibility
decision. Id.; Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Rule
901 outlines the authentication requirement for the admissibility of evidence, and it
20 requires the proponent of an item of evidence to “produce evidence sufficient to
support a finding that the item is what the proponent claims it is.” Tex. R. Evid.
901(a). “As with evidence in general, authenticating evidence may be direct or
circumstantial.” Butler v. State, 459 S.W.3d 595, 602 (Tex. Crim. App. 2015).
Rule 901(b) provides a nonexclusive list of methods for authenticating
evidence. See Tex. R. Evid. 901(b). Evidence may be authenticated in several ways,
including by direct testimony from a witness with personal knowledge, by
comparison with other authenticated evidence, or by circumstantial
evidence. Tienda, 358 S.W.3d at 638; see Butler, 459 S.W.3d at 602. Further,
authenticity may be established with evidence of “‘distinctive characteristics and the
like,’ including ‘[t]he appearance, contents, substance, internal patterns, or other
distinctive characteristics of the item, taken together with all the
circumstances.’” Acosta v. State, No. AP-77,092, 2024 WL 2845498, at *5 (Tex.
Crim. App. June 5, 2024) (per curiam) (not designated for publication) (citing Tex.
R. Evid. 901(b)(4)).
One way in which a voice can be identified is with “[a] [person’s] opinion
identifying a voice—whether heard firsthand or through mechanical or electronic
transmission or recording—based on hearing the voice at any time under
circumstances that connect it with the alleged speaker.” See Tex. R. Evid. 901(b)(5).
So, a witness is qualified to identify voices in a recording for the purposes
21 of authentication under Rule 901 if the witness has had conversations with the
speaker or if the witness has heard the voice under circumstances that connect it with
the alleged speaker. Id.; Angleton v. State, 971 S.W.2d 65, 67-68 (Tex. Crim. App.
1998). Similarly, recorded jail cell calls can be sufficiently authenticated by a
witness who is “familiar with the person’s voice” on the calls, or who testifies about
other factors that identify the speakers. Long v. State, No. 09-15-00295-CR, 2017
WL 1953229, at *2 (Tex. App.—Beaumont May 10, 2017, no pet.) (mem. op., not
designated for publication).
The illustrations for authentication in Rule 901(b) are not exhaustive, and they
do not limit the general provisions in Rule 901(a). See Morris v. State, 460 S.W.3d
190, 196 (Tex. App.—Houston [14th Dist.] 2015, no pet.). Other means of
authenticating the identity of the speakers’ voices in a telephone call include
evidence such as the context of the telephone call, the contents of the statements
made during the telephone call, and disclosure of knowledge and facts known
particularly to the speakers. Id. (citing Mosley v. State, 355 S.W.3d 59, 69 (Tex.
App.—Houston [1st Dist.] 2010, pet. ref’d)).
The authentication requirement is a liberal standard of admissibility. Fowler,
544 S.W.3d at 848-49 (quoting Butler, 459 S.W.3d at 600). The proponent must
produce sufficient evidence from which a reasonable factfinder could find
genuineness. Tienda, 358 S.W.3d at 638. Conclusive proof of authenticity is not
22 required. Fowler, 544 S.W.3d at 848. The trial court need only make a preliminary
determination that the proponent of the evidence has supplied facts sufficient to
support a reasonable jury determination that the proffered evidence is
authentic. Id. at 849. It is up to the jury to make the final determination of whether
the evidence is what the proponent claims it to be. Butler, 459 S.W.3d at 600.
Here, Stovall testified that the recording was made through the jail’s phone
call recording system by an inmate using Barnes’s name number and account.
Stovall testified that he reviewed Barnes’s jail calls and was familiar with the name
Barnes and the voice associated with the name in the system. Stovall testified that
he had been observing the trial and that statements made in the jail calls matched the
context of the trial, which led him to believe that Barnes was the man on the jail calls
he listened to. Stovall also explained that he had identified Barnes’s mother in the
jail calls by the name Barnes called her. Stovall testified that in a jail call made
during trial, Barnes asked his mother if Martin was in jail. At that point, defense
counsel objected that Stovall had not sufficiently identified Barnes, and the State
argued that Stovall had clearly identified Barnes by his unique number, name, and
context by explaining Barnes was discussing the trial and a witness.
Based on this record, we conclude the trial court could have reasonably found
that Stovall’s identification of Barnes’s voice was based on his personal knowledge,
distinctive characteristics, including Barnes’s name and number, and other
23 identifiers from the context and content of the jail call and the events at
trial. See Tex. R. Evid. 901(b)(5); Acosta, 2024 WL 2845498, at *5; Angleton, 971
S.W.2d at 67-68. Accordingly, the trial court did not abuse its discretion by finding
the State presented sufficient evidence to support a reasonable jury determination
that the proffered evidence is authentic. See Fowler, 544 S.W.3d at 849; Tienda, 358
S.W.3d at 639-40. We overrule issue two.
Extraneous Offense Evidence
In issue three, Barnes complains the trial court abused its discretion by
admitting extraneous-offense evidence about the attempted aggravated robbery of
the meat market for the purpose of identity. See Tex. R. Evid. 404(b). Barnes argues
the evidence was more prejudicial than probative and denied him a fair trial. See id.
403.
We review a trial court’s decision to admit or exclude evidence for an abuse
of discretion and must uphold the trial court’s ruling if it was “within the zone of
reasonable disagreement.” Wells v. State, 611 S.W.3d 396, 427 (Tex. Crim. App.
2020). This includes our review of a trial court’s decision to admit evidence
under Rule 404(b) for an abuse of discretion. See Dabney v. State, 492 S.W.3d 309,
318 (Tex. Crim. App. 2016). A trial court abuses its discretion if it acts without
reference to any guiding rules and principles or acts arbitrarily or
unreasonably. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim. App. 2019). We
24 uphold the trial court’s decision if correct on any theory of law applicable to the case
even if the trial court states the wrong reason for the correct ruling. De La Paz, 279
S.W.3d at 344; Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002).
Relevant evidence is evidence that has any tendency to make the existence of
any fact of consequence to the determination of the action more probable or less
probable than it would be without the evidence. See Tex. R. Evid. 401. Rule 404(b)
of the Texas Rules of Evidence provides that “[e]vidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” Id. 404(b)(1).
Rule 404(b)(2), however, provides for certain permitted uses of extraneous-
offense evidence. See id. 404(b)(2). Under the rule, such evidence is admissible for
“proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. “[E]xtraneous-offense evidence may be
admissible when a defendant raises a defensive issue that negates one of the elements
of the offense.” Martin v. State, 173 S.W.3d 463, 466 (Tex. Crim. App. 2005).
“Thus, a party may introduce evidence of other crimes, wrongs, or acts if such
evidence logically serves to make more or less probable an elemental fact, an
evidentiary fact that inferentially leads to an elemental fact, or defensive evidence
that undermines an elemental fact.” Id.
25 Rule 403 permits a trial court to exclude relevant evidence “if its probative
value is substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Tex. R. Evid. 403. When conducting a Rule
403 analysis, a trial court must balance: (1) the inherent probative force of the
proffered item of evidence along with (2) the proponent’s need for that evidence
against (3) any tendency of the evidence to suggest decision on an improper basis,
(4) any tendency of the evidence to confuse or distract the jury from the main issues,
(5) any tendency of the evidence to be given undue weight by a jury that has not
been equipped to evaluate the probative force of the evidence, and (6) the likelihood
that presentation of the evidence will consume an inordinate amount of time or
merely repeat evidence already admitted. Gigliobianco v. State, 210 S.W.3d 637,
641-42 (Tex. Crim. App. 2006); see also Hall v. State, 663 S.W.3d 15, 32 (Tex.
Crim. App. 2021). Rule 403 favors admitting relevant evidence and “carries a
presumption that relevant evidence will be more probative than prejudicial.” Davis
v. State, 329 S.W.3d 798, 806 (Tex. Crim. App. 2010) (citation omitted).
Circumstances of an offense that tends to prove the allegations of the
indictment are not extraneous offenses. Camacho v. State, 864 S.W.2d 524, 532
(Tex. Crim. App. 1993). A separate crime “‘closely related in time’” that “‘imparts
to the trier of fact information essential to understanding the context and
26 circumstances’” of the alleged offense is admissible as same transaction contextual
evidence, which can be considered without any limitation. Popp v. State, 634 S.W.3d
375, 394 (Tex. App.—El Paso 2021, pet. ref’d) (citation omitted); see Nelson v.
State, 864 S.W.2d 496, 498 (Tex. Crim. App. 1993). The indictment alleged that
Barnes intentionally caused Michael’s death by shooting him with a firearm in the
course of committing or attempting to commit robbery. Thus, any evidence that
tended to prove Barnes’s intent to rob Michael was relevant and admissible proof of
the alleged offense. See Popp, 634 S.W.3d at 394.
During the pretrial hearing, the trial court considered the State’s argument that
the attempted aggravated robbery was admissible as same transaction contextual
evidence. Considering the short time frame between the attempted aggravated
robbery and Michael’s murder, as well as the similarities in both incidents–the
wearing of dark clothes and masks and the use of firearms–the attempted aggravated
robbery tended to prove that Barnes and his co-defendant were engaged in a crime
spree involving the robbery of food establishments at gunpoint. The surveillance
video from the meat market established that Barnes was aware of both the presence
of a firearm and its intended use to perform a robbery. Thus, the trial court may have
reasonably concluded the attempted aggravated robbery was not an extraneous
offense but intrinsic evidence of a course of continuing conduct relevant to prove
27 Barnes’s intent to rob Michael and that Michael’s death was caused in the course of
a robbery or attempted robbery. See id.
The record also shows that during his opening statement, defense counsel
raised the issue of identity, arguing that Barnes was not the shooter. The attempted
aggravated robbery tended to prove Barnes’s identity by providing the jury with
essential information to understand how the khaki pants with Michael’s DNA found
in the sedan linked Barnes to both crimes. See Nelson, 864 S.W.2d at 498. Because
the evidence about the attempted aggravated robbery tended to show Barnes’s intent
to rob the deceased and was relevant and admissible proof of the alleged offense, the
trial court did not abuse its discretion by finding it was admissible as same
transaction contextual evidence. See Popp, 634 S.W.3d at 394. While Barnes also
complains the trial court erred by admitting the evidence because it was more
prejudicial than probative, we conclude the trial court’s decision was “within the
zone of reasonable disagreement.” See Wells, 611 S.W.3d at 427; Montgomery v.
State, 810 S.W.2d 372, 377-80 (Tex. Crim App. 1990). We overrule issue three.
Admission of Identification Evidence
In issue four, Barnes complains the trial court abused its discretion by
overruling his objection to the admission of the Instagram photograph and Gina’s
in-court identification of him as the shooter. Barnes complains that the pretrial
identification procedure was impermissibly suggestive and gave rise to a very
28 substantial likelihood of irreparable misidentification. Barnes argues that Gina was
unable to positively identify him in a photo lineup until Richard showed her the
Instagram photograph. The State argues that Barnes waived any error because he did
not object to Gina’s in-court identification of Barnes or object that her pretrial
identification resulted from an impermissibly suggestive identification procedure.
To preserve a complaint for appellate review, a party must timely object to
the evidence with enough specificity to let the trial court know what he wants and
why. See Tex. R. App. P. 33.1(a). A defendant must object at trial to an in-court
identification or to testimony based on an alleged impermissibly suggestive pretrial
identification procedure to preserve error. Perry v. State, 703 S.W.2d 668, 670-71
(Tex. Crim. App. 1986); see also Barley v. State, 906 S.W.2d 27, 33-34 (Tex. Crim.
App. 1995). The defendant’s issue on appeal must comport with the specific
objections he made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002).
The record shows the trial court admitted the Instagram photograph during
Richard’s testimony and that defense counsel objected based on hearsay and Rules
403 and 404. While defense counsel complained the Instagram photo was highly
suggestive and prejudicial, he agreed it was not part of a photo lineup or presented
by the police. The trial court considered the State’s argument it was laying the
foundation for Gina’s out-of-court identification of Barnes to Richard, and that
29 Richard’s testimony about Gina’s identification was not hearsay under Rule 801. See
Tex. R. Evid. 801(e)(1)(C). The trial court overruled defense counsel’s objections to
the Instagram photo and admitted the photo. Based on our review of the record,
Barnes’s objections to the Instagram photo at trial do not comport with his tainted-
identification argument on appeal.
With respect to Gina’s in-court identification of Barnes, the record shows that
Gina testified that the chubby man had big hair, and she could see most of his face
because his mask was stretched out. Gina identified Barnes as the chubby man
without any objection, and she testified that she had no trouble recognizing Barnes
because she kept looking at his face during the incident to help the police catch him.
Gina also testified about her pretrial identification of Barnes in the Instagram photo
without objection, and she explained she could not identify Barnes in the photo
lineups the police showed her with 100% certainty. While the trial court gave
defense counsel a running objection to the admission of the Instagram photo based
on Rules 403, 404, and 801, defense counsel did not object that Gina’s pretrial
identification of Barnes resulted from an impermissibly suggestive identification
procedure.
We conclude that Barnes waived this issue because he failed to object to
Gina’s in-court identification and failed to object during Gina’s testimony that her
pretrial identification of Barnes resulted from an impermissibly suggestive
30 identification procedure, and because his objections at trial regarding the Instagram
photo do not comport with his argument on appeal. We overrule issue four.
CONCLUSION
Having overruled all of Barnes’s issues, we affirm the trial court’s judgment.
AFFIRMED.
JAY WRIGHT Justice
Submitted on August 28, 2025 Opinion Delivered October 15, 2025 Do Not Publish
Before Golemon, C.J., Wright and Chambers, JJ.