Joseph Tate Bailey v. State

Opinion

ACCEPTED

01-15-00215-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/11/2015 11:58:13 AM CHRISTOPHER PRINE

No. 01-15-00215-CR CLERK

In the

Court of Appeals FILED IN For the 1st COURT OF APPEALS HOUSTON, TEXAS

First District of Texas 11/12/2015 8:16:13 AM

At Houston

CHRISTOPHER A. PRINE

Clerk



No. 1411201

In the 248th District Court Of Harris County, Texas

 JOSEPH BAILEY Appellant

V.

THE STATE OF TEXAS Appellee

 STATE’S APPELLATE BRIEF  DEVON ANDERSON

District Attorney Harris County, Texas

SARA SEELY Assistant District Attorney Harris County, Texas

GREG HOULTON Assistant District Attorney Harris County, Texas

JESSICA CAIRD Assistant District Attorney Harris County Criminal Justice Center 1201 Franklin, Suite 600 Houston, Texas 77002 Telephone: 713.274.5826 Fax Number: 713.755.5809 State Bar Number: 24000608

ORAL ARGUMENT NOT REQUESTED

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to Texas Rule of Appellate Procedure 9.4(g) and Texas Rule of

Appellate Procedure 39.1, the State does not believe oral argument is necessary to

resolve the issues on appeal.

IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list

of the names of all interested parties is provided below.

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Jessica Caird  Assistant District Attorney on appeal

Sarah Seely & Greg Houlton  Assistant District Attorneys at trial

Appellant or criminal defendant:

Joseph Bailey

Counsel for Appellant:

Lana Gordon  Counsel on appeal

Mike Trent  Counsel at trial

Trial Judge:

Honorable Katherine Cabaniss Judge Presiding

i

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS .......................................................................................... ii

INDEX OF AUTHORITIES.....................................................................................vi

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

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

SUMMARY OF THE ARGUMENT ...................................................................... 21

REPLY TO APPELLANT’S FIRST POINT OF ERROR ...................................... 23

I. The standard of review and applicable law on sufficiency and corroboration of accomplice testimony................................................... 23

II. The jury heard more than sufficient evidence to establish appellant’s guilt apart from accomplice testimony ................................ 25

a. The text messages connected appellant to the crime .......................... 26

b. Rose Preece’s testimony connected appellant to the crime ................ 26

c. Stella Preece connected appellant directly to the murder ................... 28

d. The gas station surveillance photographs corroborated the accomplice witness testimony and tended to connect appellant to the crime .............................................................................................. 30

e. The firearms evidence tended to connect appellant to the crime ........ 30

f. Appellant fled after the murder and hid from police .......................... 31

g. Appellant’s motive to participate in the murder connected him ......... 32

ii

h. Considered as a whole, evidence outside of accomplice testimony tended to connect appellant to the murder .......................................... 33

REPLY TO APPELLANT’S SECOND POINT OF ERROR ................................. 33

I. The standard of review and applicable law regarding charge error and accomplice witness instructions ....................................................... 34

II. Stella was not an accomplice .................................................................. 36

a. Stella was not an accomplice under Texas Penal Code Section 7.02(b) ................................................................................................. 37

b. Stella was not an accomplice under Texas Penal Code Section 7.02(a)(2) ............................................................................................. 39

III. Egregious harm did not result .............................................................. 42

IV. The jury charge correctly instructed on accomplice-witness law and applied the facts to the law ............................................................... 45

REPLY TO APPELLANT’S THIRD AND SIXTH POINTS OF ERROR ............ 47

I. The standard of review and applicable law .............................................. 48

II. The closing arguments ........................................................................... 48

a. Guilt Phase .......................................................................................... 48

b. Punishment Phase ................................................................................ 52

III. Appellant waived error to all of his guilt phase complaints ................. 53

IV. Most of the prosecutor’s guilty phase arguments were within the scope of proper summation ..................................................................... 54

V. No harm resulted closing argument ....................................................... 56

a. Guilty Phase ........................................................................................ 56

iii

b. Punishment Phase ................................................................................ 57 REPLY TO APPELLANT’S FOURTH POINT OF ERROR ................................. 59

I. Testimony that appellant had been in prison ........................................... 60

II. The instruction and Ate’s testimony cured the error ............................ 60

REPLY TO APPELLANT’S FIFTH POINT OF ERROR...................................... 61

I. The record does not support appellant’s claims ...................................... 62

II. Appellant’s misplaces his reliance on Oprean v. State ......................... 63

REPLY TO APPELLANT’S SEVENTH POINT OF ERROR .............................. 65

I. The jury’s requests and the testimony read back ..................................... 65

II. The read back testimony was responsive to the jury’s question ........... 66

REPLY TO APPELLANT’S EIGHTH POINT OF ERROR .................................. 67

REPLY TO APPELLANT’S NINTH POINT OF ERROR .................................... 69

I. The standard of review and applicable law .............................................. 69

II. Trial Counsel did not perform deficiently and his actions did not result in prejudice which undermined confidence in the outcome ....... 69

a. The jury charge was not erroneous ..................................................... 69

b. Trial counsel repeatedly objected to the gang evidence ..................... 70

REPLY TO APPELLANT’S TENTH POINT OF ERROR.................................... 71

I. Failure to request instruction to disregard waived error to Miller complaint .................................................................................................. 71

II. The Vernon Brooks complaint was unpreserved .................................. 73

PRAYER .................................................................................................................. 74

iv

CERTIFICATE OF SERVICE ................................................................................ 75

CERTIFICATE OF COMPLIANCE ....................................................................... 76

v

INDEX OF AUTHORITIES

CASES

Abdnor v. State, 871 S.W.2d 726 (Tex.Crim.App. 1994) ...............................................................34 Aguirre-Mata v. State, 992 S.W.2d 495, (Tex.Crim.App. 1999) ..............................................................68 Alejandro v. State, 493 S.W.2d 230 (Tex.Crim.App. 1973) ...............................................................48 Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1984) ...............................................................34 Arana v. State, 1 S.W.3d 824 (Tex.App.—Houston [14th Dist.] 1999, pet. ref’d) ................................................................................73 Barrios v. State, 283 S.W.3d 348 (Tex.Crim.App. 2009) ........................................................ 46, 47 Blake v. State, 971 S.W.2d 451 (Tex.Crim.App. 1998) ...............................................................35 Bonier v. State, 738 S.W.2d 726 (Tex.App.—Houston [14th Dist.] 1989, no pet.) ....................................................................................48 Brown v. State, 870 S.W.2d 53 (Tex.Crim.App. 1994) .......................................................... 66, 67 Burks v. State, 876 S.W.2d 877 (Tex.Crim.App. 1994) ...............................................................31 Bustamante v. State, 48 S.W.3d 761 (Tex.Crim.App. 2001) .................................................................58 Casanova v. State, 383 S.W.3d 530 (Tex.Crim.App. 2012) ...............................................................42 Cathey v. State, 992 S.W.2d 460 (Tex.Crim.App. 1999) ...............................................................25 Cocke v. State, 201 S.W.3d 744 (Tex.Crim.App. 2006) ...............................................................35

vi

Cureton v. State, 800 S.W.2d 259 (Tex.App.—Houston [14th Dist.] 1990, no pet.) ....................................................................................72 Dickinson v. State, 685 S.W.2d 320 (Tex.Crim.App. 1984) ...............................................................48 Doherty v. State, 892 S.W.2d 13 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d) ...................................................................................72 Druery v. State, 225 S.W.3d 491 (Tex.Crim.App. 2007) ...............................................................25 Easter v. State, 536 S.W.2d 223 (Tex.Crim.App. 1976) ...............................................................35 Erlandson v. State, 763 S.W.2d 845 (Tex.App.—Houston [14th Dist.] 1988, pet. ref’d) ................................................................................55 Ex parte White, 160 S.W.3d 46 (Tex.Crim.App. 2004) .................................................................70 Gamboa v. State, 296 S.W.3d 574 (Tex.Crim.App. 2009) ........................................................ 60, 61 Gamez v. State, 737 S.W.2d 315 (Tex. Crim. App. 1987) .............................................................36 Gardner v. State, 730 S.W.2d 675 (Tex.Crim.App. 1987) ...............................................................60 Goodwin v. State, 307 S.W.2d 264 (1957) ........................................................................................35 Gross v. State, 380 S.W.3d 181 (Tex.Crim.App. 2012) ........................................................ 40, 41 Guevara v. State, 152 S.W.3d 45 (Tex.Crim.App. 2004) .................................................................40 Hernandez v. State, 340 S.W.3d 55 (Tex.App.—Houston [1st Dist.] 2011, no pet.) .......................................................................................46 Hernandez v. State, 939 S.W.2d 173 (Tex.Crim.App. 1997) ............................................ 24, 26, 31, 33

vii

Herron v. State, 86 S.W.3d 621 (Tex.Crim.App. 2002) .......................................................... 42, 43 Jackson v. Virginia, 443 U.S. 307 (1979) .............................................................................................23 Johnson v. State, 611 S.W.2d 649 (Tex.Crim.App. [Panel Op.] 1981) ...........................................48 Kemp v. State, 846 S.W.2d 289 (Tex.Crim.App. 1992) ........................................................ 60, 61 Kincaid v. State, 534 S.W.2d 340 (Tex.Crim.App. 1976) ...............................................................48 King v. State, 895 S.W.2d 701 (Tex.Crim.App. 1995) ...............................................................23 Kunkle v. State, 771 S.W.3d 435 (Tex. Crim. App. 1986) .............................................................25 Leday v. State, 983 S.W.2d 713 (Tex.Crim.App. 1998) ...............................................................61 Linton v. State, 15 S.W.3d 615 (Tex.App.—Houston [1st Dist.] 2000, pet. ref’d) ...................................................................................68 Mays v. State, 726 S.W.2d 937 (Tex.Crim.App. 1986) ...............................................................27 Mitchell v. State, No. 01-09-00865-CR, 2011 WL 1755424 (Tex.App.—Houston [1st Dist.] 2011, pet. ref’d) (not designated for publication) ...............................68 Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998) ...............................................................57 Neal v. State, 108 S.W.3d 577 (Tex.App.—Amarillo 2003, no pet.).........................................66 Oprean v. State, 201 S.W.3d 724 (Tex.Crim.App. 2006) ........................................................ 63, 64 Paolilla v. State, 342 S.W.3d 783 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d) ................................................................................56

viii

Paredes v. State, 129 S.W.3d 530 (Tex.Crim.App. 2004) ........................................................ 35, 37 Passmore v. State, 617 S.W.2d 682 (Tex.Crim.App. 1981) ...............................................................31 Paulus v. State, 633 S.W.2d 827 (Tex.Crim.App. 1981) ...............................................................26 Penagraph v. State, 623 S.W.2d 341 (Tex.Crim.App. 1981) ...............................................................23 Reynolds v. State, 489 S.W.2d 866 (Tex.Crim.App. 1972) ...............................................................24 Schultze v. State, 177 S.W.3d 26 (Tex.App.—Houston [1st Dist.] 2005, pet. ref’d) ...................................................................................57 Sharp v. State, 707 S.W.2d 611 (Tex.Crim.App. 1986) ...............................................................24 Smith v. State, 332 S.W.3d 425 (Tex.Crim.App. 2011) ........................................................ 30, 33 Snowden v. State, 353 S.W.3d 815 (Tex.Crim.App. 2011) ........................................................ 58, 59 Snyder v. State, 68 S.W.3d 671 (Tex.App.—El Paso 2000, pet. ref’d) .................................. 25, 27 Soto v. State, 864 S.W.2d 687 (Tex.App.—Houston [14th Dist.] 1993, pet. ref’d) ................................................................................48 St. Julian v. State, 132 S.W.3d 512 (Tex.App. – Houston [1st Dist.] 2004, pet. ref’d) ....................24 State v. LaRue, 152 S.W.3d 95 (Tex.Crim.App. 2004) ................................................................65 Strickland v. Washington, 466 U.S. 668 (1984) .............................................................................................69 Temple v. State, 342 S.W.3d 572 (Tex.App.—Houston [14th Dist.] 2010), aff’d on other grounds 390 S.W.3d 341 (Tex.Crim.App. 2013) .............................................................................................................. 53, 54

ix

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999) .................................................................69 Vasquez v. State, 67 S.W.3d 229 (Tex.Crim.App. 2002) .................................................................71 Warner v. State, 245 S.W.3d 458 (Tex.Crim.App. 2008) ...............................................................34 Zamora v. State, 411 S.W.3d 504 (Tex.Crim.App. 2013) ...................................... 35, 36, 37, 40, 41 Zunker v. State, 177 S.W.3d 72 (Tex.App.—Houston [1st Dist.] 2005, pet. ref’d) ...................................................................................57

x

STATUTES

TEX. CODE CRIM. P. ANN. art. 36.01(a)

(West 2006) ..........................................................................................................68 TEX. CODE CRIM. P. ANN. art. 36.28 (West 2006) ..........................................................................................................66 TEX. CODE CRIM. P. ANN. art. 38.14 (West 2005) ..........................................................................................................24 TEX. CODE CRIM. P. ANN. art. 38.14 (West 2006) ..........................................................................................................46 TEX. PENAL CODE ANN. §7.02 (West 2011) ..........................................................................................................36 TEX. PENAL CODE ANN. §7.02(a)

(West 2011) ................................................................................................... 35, 39 TEX. PENAL CODE ANN. §7.02(a)(2)

(West 2006) ..........................................................................................................35

RULES

TEX. R. APP. P. 38.2(a)(1)(A) ..................................................................................... i TEX. R. APP. P. 39.1.................................................................................................... i TEX. R. APP. P. 44.2(b) ...................................................................................... 57, 68 TEX. R. APP. P. 9.4(g) ................................................................................................. i

xi

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

The State charged appellant by indictment with the felony offense of

murder.1 Appellant pled not guilty, but a jury returned a guilty verdict on February

23, 2015.2 The jury assessed sentence at 35 years confinement in the Texas

Department of Criminal Justice, Institutional Division after finding both

consecutive enhancement paragraphs “true.”3 Appellant filed timely written notice

of appeal the same day.4 He filed a motion for new trial, but he withdrew it before

the trial court ruled.5

STATEMENT OF FACTS

In September 2012, Michael Hourshad lived in Baytown, Texas, and

supported himself by selling methamphetamine while his roommate sold heroin.6

1 (CR-13); The appellate record consists of the following:

CR-Clerk’s Record; RRI-RRX-Court Reporter’s Record from February 10 through 24, 2015, prepared by Louise Steckler, however amended volume 3 (the voir dire portion), originally mistitled volume 2 of 7, was recorded by Julia Johnson. The State will refer to it as RRIII.

2 (CR-170). 3 (CR-173, 182). 4 (CR-199). 5 (CR-204-209, 211-212, 216). 6 (RRIV-32, 33, 37).

Hourshad was friends with Tara Brown Cook, who went by Brown.7 They were

friends for about a year before September 2012, and Hourshad knew appellant as

Brown’s boyfriend.8 He did not know Vernon Brooks, Joseph Kazee, or Rose

Preece.9

On September 25, 2012, the complainant, Sergio Saldana came to

Hourshad’s house to pick up some heroin.10 He arrived around 5:00 pm appearing

antsy and shaky.11 Recognizing he had heroin withdrawal, Hourshad permitted

him to stay and shoot up.12 Saldana went into the bedroom, and returned calmer.13

Hourshad smoked methamphetamine with Saldana.14 Around that time,

Brown and appellant stopped by.15 Before Saldana arrived, Hourshad called

Brown because he heard rumors that Saldana might rob him.16 He asked Brown if

he needed a gun, she thought not, and offered to check on him with appellant.17

7 (RRIV-34, 47, 101). 8 (RRIV-34, 35, 36). 9 (RRIV-36-37). Rose Henderson was known at trial as Rose Preece. Because Stella Preece and Rose Preece share a last name, the State uses first names to avoid confusion.

10 (RRIV-37-38).

11 (RRIV-38).

12 (RRIV-38-39).

13 (RRIV-39).

14 (RRIV-39).

15 (RRIV-39-40, 49).

16 (RRIV-47).

17 (RRIV-47).

3

When Saldana was on his way over Hourshad told Brown.18 After Saldana

arrived, Hourshad no longer felt fearful, and when Brown texted to ask if Saldana

knew they were coming, Hourshad replied that Saldana did not seem to know

Brown.19 Brown texted to ask if Saldana was a “real big guy,” he answered,

“Kinda but thing[s] [are] ok they seem[.]”20 Hourshad responded “yes” when

asked if they were alone.21

Appellant and Brown arrived, came inside, and shook hands with Saldana.22

The four spoke briefly, Saldana mentioned that he needed a ride home, and they

offered him one.23 Brown and appellant left briefly, and a few minutes later Brown

texted, “Don’t worry we will be right back what are y’all doing leave the door

unlocked[.]”24

Brown texted, “Did he take the hit yet.”25 Hourshad replied, “Not yet. Um I

will unlock.”26 Two minutes later, Brown texted, “Thank you just don’t stan[d] by

the door okay is he still on the couch[.]” and he texted “yes.”27

18 (RRIV-48). 19 (RRIV-48, 66; State’s Exhibit No. 2). 20 (RRIV-66; State’s Exhibit No. 2). 21 (RRIV-66-67; State’s Exhibit No. 2). 22 (RRIV-49-50). 23 (RRIV-50). 24 (RRIV-51, 52, 67; State’s Exhibit No. 2) 25 (RRIV-67; State’s Exhibit No. 2). 26 (RRIV-67-68; State’s Exhibit No. 2). 27 (RRIV-68; State’s Exhibit No. 2)

4

Saldana felt fearful after they left.28 Saldana knew appellant was an Aryan

Brotherhood of Texas (ABT) member, ABT wanted to hurt Saldana, and he

wondered if he should leave.29 Hourshad reassured.30 Hourshad offered him a

drink and they planned to play PlayStation in the bedroom.31 Hourshad got drinks

and went to the bedroom, but he turned to go back to the kitchen.32

As Hourshad turned around, someone burst through the front door

screaming, “Get down motherfucker.”33 He recognized appellant’s face among the

men coming in.34 He saw three guns and appellant held one.35 He saw two faces,

but he could not see the person standing behind appellant.36 Hourshad denied that

he received Brown’s text 20 minutes after she told him to be away from the door

that said, “there are about to be three people coming in don’t be by the door or by

him don’t worry.”37

Hourshad followed the instruction to “get down” and he covered his head as

he saw Saldana sitting by the PlayStation.38 He did not see Saldana make any

28 (RRIV-52). 29 (RRVI-231-232). 30 (RRVI-232, 233-234). 31 (RRIV-40, 52-53; State’s Exhibit No. 73). 32 (RRIV-52-53). 33 (RRIV-54). 34 (RRIV-54). 35 (RRIV-54). 36 (RRIV-77; RRVI-224-225). 37 (RRIV-69-70; State’s Exhibit No. 2). 38 (RRIV-55).

5

aggressive moves towards the men.39 Saldana laughed when the men came into the

house.40 Someone yelled, “Did you think you could get away?” and he heard

someone punch Saldana.41 The intruders focused on Saldana.42 Hourshad heard

three to four gunshots.43

After a minute, Hourshad peaked through his fingers and he saw the shortest

man with a gun approach and demand “Did you see our face, motherfucker[?]” 44

The man repeated the question several times, but appellant waived him off.45 The

men left after telling him “don’t do anything.…don’t call the police.” 46 Five

minutes after the text about the three men, Hourshad received a text from Brown to

“Erase my messages.”47

Hourshad waited a few minutes, listened to ensure they left, and called

911.48 Emergency personnel arrived and police questioned him.49 He went to the

Baytown Police Department to give a statement that evening, but he lied in it.50 He

feared the gunmen would hurt him or police would accuse him, so he concealed

39 (RRIV-55). 40 (RRVI-230). 41 (RRIV-58). 42 (RRIV-59). 43 (RRIV-59). 44 (RRIV-60). 45 (RRIV-60). 46 (RRIV-60). 47 (RRIV-70; State’s Exhibit No. 2). 48 (RRIV-60-61). 49 (RRIV-62-63). 50 (RRIV-62).

6

Brown’s texts and visit.51 Hourshad’s phone ran out of battery before he could

delete the texts so he threw it in the police station trash.52 Police reviewed

Hourshad’s text messages.53 His call log showed a call from appellant at 6:33 and

one from Brown which occurred at the same time Hourshad called 911.54

Police charged Hourshad with aggravated assault and possession of

controlled substances found when they searched his house.55 The State dismissed

the assault charge and Hourshad pled guilty to a six-year deferred on the

possession charge in January 2014.56

Brown testified that she had an intermittent relationship with appellant.57

Hourshad called her on September 25, 2012, and they exchanged texts.58 She and

appellant went to Hourshad’s and saw Saldana with him.59 She knew Saldana.60

She arrived while he heated heroin in the bedroom.61 Hourshad appeared nervous,

51 (RRIV-63, 64). 52 (RRIV-70, 79-80, 95-96; RRVI-136). 53 (RRIV-90, 91-92, 93; State’s Exhibit No. 18) 54 (RRIV-51, 65; State’s Exhibit No. 114). 55 (RRIV-71-72). 56 (RRIV-72). 57 (RRIV-101, 102). 58 (RRIV-105). 59 (RRIV-107) 60 (RRIV-107). 61 (RRIV-108).

7

but Saldana did not act aggressive.62 Saldana sat and talked with them, but they left

15 minutes later.63

During the brief conversation, appellant went outside with his phone.64

Appellant came back and said they had to go.65 Appellant drove her to meet

Vernon “Dinky” Brooks, Joseph “Worm” Kazee, and Stella Preece after Brooks’

truck run out of gas.66 They picked up Brooks, and appellant drove him to a gas

station.67 The jury saw surveillance photographs of appellant entering the gas

station alone on September 25, 2012 at 5:55 p.m.68

Ten minutes later appellant drove them to Brooks’ truck.69 Appellant spoke

to Brooks privately before he instructed Brown to text Hourshad.70 The text

messages occurred primarily between 17:10 and 17:29 when the couple first

arrived at Hourshad’s.71 They exchanged more texts after the couple left while

Brooks got gas at 17:56 about Hourshad leaving the door unlocked.72

62 (RRIV-109). 63 (RRIV-110). 64 (RRIV-111). 65 (RRIV-114). 66 (RRIV-115, 116, 139). 67 (RRIV-117). 68 (RRIV-118-119; State’s Exhibit No. 19-24). 69 (RRIV-119, 120, 121). 70 (RRIV-121, 129, 133). 71 (RRIV-126; State’s Exhibit No. 2). 72 (RRIV-126; State’s Exhibit No. 2).

8

After getting the gas, appellant drove them to Hourshad’s while Brooks

followed.73 Brown texted more questions appellant asked her to send from 17:56

through 18:00.74 Brown did not know what would happen.75 She knew Brooks

had a past altercation with Saldana.76 Appellant instructed Brown at 18:24 to text

Hourshad there would be three people coming in and he should avoid the door and

Saldana.77 At 18:29, Brown texted that he should erase her messages.78

While they drove to Hourshad’s, Brown recalled appellant talking or texting

on his own phone.79 When they arrived the second time, appellant took off his top

two shirts, and left the car in a tank top.80 Appellant carried his Springfield nine-

millimeter semiautomatic handgun.81 Appellant placed the gun in his pants.82

Brooks and Kazee went into the house after appellant.83 Stella never went in.84

Brown heard two gunshots one right after the other.85 Appellant, Brooks,

and Kazee came out with appellant in the lead.86 Brown drove because appellant

73 (RRIV-127). 74 (RRIV-129, 130). 75 (RRIV-131, 132, 133). 76 (RRIV-131). 77 (RRIV-133). 78 (RRIV-133, 134; State’s Exhibit No. 2). 79 (RRIV-135). 80 (RRIV-136, 137). 81 (RRIV-137, 167). 82 (RRIV-138). 83 (RRIV-141-142). 84 (RRIV-168). 85 (RRIV-143).

9

told her to move before he went inside.87 Appellant got into the passenger seat,

and told her that Brooks shot at Saldana but he thought the bullet missed him.88

Brown called Hourshad fearful for his safety, but he did not answer.89 When he

finally answered a later call, he had already called 911 and still sounded

hysterical.90

Brown drove appellant to his mother’s, and then they returned to Brown’s

trailer.91 They knew police would seek them and they run for two weeks, but

Brown turned herself in on October 1, 2015.92 She tried to clear appellant’s name

by relaying the things he told her, but she lied at appellant’s request about his

going into the house.93 Police knew about the text messages, they arrested her for

murder, and she spent a year in custody before the State dismissed the charge in

exchange for her truthful testimony.94

Kazee knew appellant as “JoJo” and his girlfriend Brown.95 He knew

Brooks, Stella as Brooks’ girlfriend, and Rose as Stella’s sister.96 On September

86 (RRIV-143). 87 (RRIV-144). 88 (RRIV-144-145). 89 (RRIV-145, 169-170). 90 (RRIV-169-170). 91 (RRIV-145, 146). 92 (RRIV-147, 148). 93 (RRIV-148-150). 94 (RRIV-151-153, 154). 95 (RRIV-176, 177-178). 96 Id.

10

25, Kazee came into contact with Brooks, Stella, and Rose in the afternoon.97

Brooks picked Kazee up to give him a ride.98

Kazee was an ABT member for ten years, and he knew Brooks was a captain

in ABT.99 Kazee lacked rank and acted as a soldier requiring him to obey Brooks’

commands or risk death.100 Kazee knew appellant as an ABT enforcer.101

Earlier in September, Brooks had an altercation with Saldana, and he

informed ABT members “to take violent action against” Saldana.102 The 25th

Kazee heard Brooks get a call from appellant.103 Kazee recognized appellant’s

voice.104 Appellant told Brooks he knew where to find Saldana, Brooks’ demeanor

changed, and he started to drive to Baytown.105 Stella and Rose were also in the

car.106

Stella, the older sister, insisted that Rose get out of the car, and she

convinced Brooks to drop her at a gas station.107 As they drove to Baytown,

97 (RRIV-178-179). 98 (RRIV-179). 99 (RRIV-187, 188). 100 (RRIV-188, 195).

101 (RRIV-188-189).

102 (RRIV-189-190).

103 (RRIV-191).

104 (RRIV-191).

105 (RRIV-192).

106 (RRIV-192).

107 (RRIV-192).

11

Brooks’ truck ran out of gas.108 Appellant met them and got them gas.109 Kazee

thought Brooks stayed with the truck while appellant went for gas.110

Appellant put gas in Brooks’ truck, and they drove to Baytown.111 Appellant

showed Brooks the way to Saldana’s location.112 Kazee understood they went to

find Saldana and, “that he was only going to be beat up[.]”113 Kazee was under

Brooks’ order to be violent towards Saldana, but neither Stella nor Kazee were

privy to appellant and Brooks’ plan.114

At the house, Kazee saw Brooks take a .38 caliber revolver from his toolbox

in the back of his truck, and he saw that appellant held a large-caliber

semiautomatic.115 Kazee did not carry a gun.116 He heard appellant say, “Let’s do

this.”117 Someone said Saldana’s name, and Kazee saw Saldana in the bedroom.118

Appellant went up to Saldana, hollered at him, and pulled his gun.119 Brooks

struck Saldana in the head with the gun.120 Saldana fell to the floor and Brooks

108 (RRIV-192).

109 (RRIV-193-194).

110 (RRIV-194).

111 (RRIV-194).

112 (RRIV-194-196).

113 (RRIV-194).

114 (RRIV-195,211-213).

115 (RRIV-196, 197, 208).

116 (RRIV-197).

117 (RRIV-197).

118 (RRIV-198).

119 (RRIV-198-199).

120 (RRIV-199).

12

kicked him.121 Saldana crawled away, and Kazee heard gunshots from where

appellant stood.122 He heard two shots and saw Brooks fire the second.123 Kazee

thought the first bullet struck Saldana because he had a chest wound.124

The men turned to go, but someone opened the bathroom curtains.125

Brooks went to him and put his gun in the man’s face.126 Brooks and appellant

turned to leave.127 Appellant left first, then Kazee and Brooks.128 Appellant left in

his truck, and Stella drove Kazee and Brooks to a gas station.129

After the gas station, Brooks drove them to the river bottom in Channelview,

and he went off into the salt grass where Kazee could not see him.130 When

Brooks returned to the truck, he did not have the gun.131 Brooks had them wash off

the gunshot residue.132 He ordered Kazee to stay with them for a few hours before

Kazee returned to his aunt’s.133

121 (RRIV-199).

122 (RRIV-200).

123 (RRIV-200).

124 (RRIV-200).

125 (RRIV-201-202).

126 (RRIV-202).

127 (RRIV-202).

128 (RRIV-202).

129 (RRIV-203).

130 (RRIV-204).

131 (RRIV-204).

132 (RRIV-204).

133 (RRIV-204-205).

13

Police interviewed Kazee two weeks later, but he lied.134 Police did not

charge Kazee with a crime.135 When he testified, he was no longer an active ABT

member.136

Stella was in a relationship with Brooks.137 She knew appellant through

Brooks and through Rose.138 While she, Brooks, Rose and Kazee played video

poker, Brooks received a call from appellant, but she did not hear the contents of

the call.139 They left the gas station and Brooks told her they left to meet appellant

and Brown.140

The group got into Brooks’ truck.141 Rose, Stella, and Kazee went as

passengers.142 During the trip, Brooks answered another call from appellant, and

Stella became upset because she did not want Brooks to see Saldana, and she did

not want to leave the game room.143 Stella insisted that Rose not accompany them

because did not want Rose to be a part of any trouble.144 She did not know what

134 (RRIV-205).

135 (RRIV-206).

136 (RRIV-207).

137 (RRIV-223).

138 (RRIV-224-225).

139 (RRIV-226).

140 (RRIV-227).

141 (RRIV-227).

142 (RRIV-227).

143 (RRIV-228-229).

144 (RRIV-229).

14

would happen, but Rose should not be there.145 She convinced Brooks to drop

Rose at the river bottom.146

Brooks acted aggressive and he would not listen when Stella dissuaded

him.147 She begged him not to go, and Kazee also dissuaded Brooks, but Brooks

just became irritated.148 They ran out of gas, appellant took Brooks to get gas, and

he put gas in Brooks’ truck.149 Brooks followed appellant to Saldana’s location.150

When they arrived, appellant got out of his truck, but Stella did not see

Brown get out.151 She did not see if appellant carried anything because she was

arguing with Brooks until Brooks and Kazee got out of the truck.152 She saw

nothing in Brooks and Kazee’s hands, and she did not know that Brooks had a gun

with him.153 Brooks owned guns, but he did not usually carry one.154

Stella saw appellant enter the house first, then Kazee, and last Brooks.155

The men were not in the house long, and Stella sat in the car with the radio turned

145 (RRIV-230).

146 (RRIV-229).

147 (RRIV-230).

148 (RRIV-231).

149 (RRIV-231).

150 (RRIV-232-233).

151 (RRIV-234).

152 (RRIV-234).

153 (RRIV-234-235).

154 (RRIV-235).

155 (RRIV-235).

15

up.156 She did not hear any noises before she saw the men come out.157 They

walked quickly to the trucks and appeared “[s]hook up, nervous.”158

Stella drove to the river bottoms at Brooks’ instruction, where Brooks got

out for a few minutes, then returned, and they left.159 The three stayed together for

a few hours, but her relationship with Brooks soon ended.160

Stella learned from a newspaper article the following day about Saldana’s

murder.161 On cross-examination she agreed that she “could have been charged in

connection with this” and that police “considered it[.]”162 Stella knew of no plan to

harm Saldana at the time, she believed they would just “talk some shit” to him.163

Rose had previously had an intimate relationship with appellant.164 On

September 25, she was with Kazee, Preece, and Brooks.165 Brooks got a call from

appellant that he answered on speaker, and Rose recognized appellant’s voice.166

Appellant said, “I’ve got it. Hey, I got that—I got him.”167 Brooks said he had

people in the car, but appellant told him, “You asked for anybody to get—to stop

156 (RRIV-236).

157 (RRIV-236).

158 (RRIV-236).

159 (RRIV-237, 238).

160 (RRIV-238-239).

161 (RRIV-241).

162 (RRIV-244).

163 (RRIV-246).

164 (RRIV-273, 275).

165 (RRIV-277).

166 (RRIV-277-278).

167 (RRIV-278).

16

and get this guy.”168 In the background she and Stella heard Brown, Stella shouted

at Brooks and he ended the call.169 She thought appellant called back and Brooks

appeared “tensed up,” drove faster, and got red.170

Rose thought appellant “pull[ed] [Brooks’] card” meaning Brooks would

lose status if he did not follow through on past statements.171 Brooks immediately

began driving to Baytown, but Stella did not want him to go and she wanted Rose

out of the car.172 Stella tried to talk Brooks out of “going and beating this dude’s

ass.”173 Kazee also asked to be let out of the truck.174

Rose heard appellant say that “Tara can talk to Sergio”, and he thought Tara

could convince him to go someplace else.175 Brooks stopped, Rose got out, and

she tried to convince Stella to stay with her.176 Rose did not see any weapons in

the truck, and Brooks did not talk about shooting or killing Saldana.177 Brooks

168 (RRIV-279).

169 (RRIV-279).

170 (RRIV-280).

171 (RRIV-284-285).

172 (RRIV-280).

173 (RRIV-280).

174 (RRIV-281).

175 (RRIV-281, 282).

176 (RRIV-283).

177 (RRIV-294).

17

drove off, and she did not see Stella again until days later.178 Rose later confronted

appellant about involving Stella, and appellant apologized.179

A gang expert with Baytown Police Department assisted because police

knew only nicknames from Hourshad’s texts.180 He identified “JoJo” as

appellant.181 Appellant is documented statewide as an ABT member.182 Appellant

has tattoos common among ABT members.183 Joseph Kazee also has a consistent

ABT tattoo.184 Kazee and Brooks are documented ABT members.185 The three

women are known ABT associates.186

ABT members must sign a “Blind Faith Commitment” and follow the

gang’s constitution.187 Even when a member disagrees with an order, he cannot

disobey it, but he may complain later in a grievance procedure.188 Disobedient

members face discipline from beatings to murder, but obedient members may

increase in rank.189 The gang’s code forbids members from cooperating with law

178 (RRIV-286-287).

179 (RRIV-289).

180 (RRIV-253,254,256).

181 (RRIV-258, 259).

182 (RRIV-259-260).

183 (RRIV-262).

184 (RRIV-263).

185 (RRIV-265-266).

186 (RRIV-269-270).

187 (RRIV-304,305).

188 (RRIV-305-306).

189 (RRIV-306, 307).

18

enforcement, and cooperation could result in the person’s death.190 Vernon Brooks

was a permanent captain for ABT.191

In the room where police found the body, a crime scene investigator found a

copper-jacketed projectile in the mattress.192 The projectile entered the box springs

at a 40 to 50 degree angle.193 He recovered a projectile from the floor beneath

Saldana’s body.194 He found a shell casing on the bed likely ejected from a

semiautomatic weapon.195

The casing belonged to a nine millimeter Luger PPU type cartridge.196 The

projectile from the bed was consistent with firing from a nine-millimeter

semiautomatic weapon.197 But the characteristics from the floor projectile were

consistent with a revolver.198 At least two firearms were fired in the room. 199 A

DNA analysis of the projectile recovered from beneath Saldana showed it

contained biological material consistent with his profile.200

190 (RRIV-308-309).

191 (RRIV-310).

192 (RRVI-37, 45).

193 (RRVI-57).

194 (RRIV-45).

195 (RRVI-54).

196 (RRVI-85).

197 (RRIV-91).

198 (RRVI-95, 104).

199 (RRVI-97).

200 (RRVI-212).

19

Saldana died from a single gunshot wound that entered on the left side of his

body and exited through his right upper back near his shoulder. 201 As it passed

through his body it caused extensive blood loss.202

The lead investigator interviewed Hourshad and learned ABT might be

involved.203 She tracked down information on Brown from her phone number, but

she could not find appellant or Brown when she searched for them. 204 She charged

Brown with murder and a prosecutor took aggravated assault on Hourshad.205 She

sought charges on Brooks and appellant, but the prosecutor declined because she

lacked independent corroboration.206 Finally, because of additional investigation

and recovery of the firearms evidence, the prosecutor accepted a charge on

appellant in December 2013.207

The investigator determined that Hourshad, Brown, Kazee, Brooks, and

appellant were involved in the murder.208 She did not consider Stella a participant

because she never went into the house, she had no part in setting it up, and nothing

indicated that she encourage the crime.209

201 (RRVI-15,17-18,21,29).

202 (RRVI-19-20).

203 (RRVI-125,126,139).

204 (RRVI-141, 142)

205 (RRVI-149-152).

206 (RRVI-151,153,157-158).

207 (RRVI-163,166,168-169).

208 (RRVI-178).

209 (RRVI-178).

20

Appellant called two ABT members who claimed that appellant was not

ABT.210 Both claimed they met with Brooks a different times and he disclosed that

someone was taking a murder case for him.211 Patrick Miller claimed Brooks

confessed to shooting Saldana with a revolver.212 Miller maligned the three

women and claimed they were “sack chasers” meaning they chased dope and

would be with anyone that could supply their habit.213

Roy Ates referred to Stella as “Bro Ho” and a “sack chaser.”214 He claimed

she would be with the person with the largest sack of dope.215 He lacked

familiarity with Brown, and knew Rose only as Stella’s sister.216 He claimed

anyone could get whatever he wanted from Stella, Rose, and Kazee in exchange

for dope.217

The prosecutor impeached both men with their extensive criminal histories,

and Miller with a statement he gave in another murder case.218 Jurors saw a

photograph of Miller with other ABT members.219 The State asked Ates about his

initial statement which implicated two other women, but Ates denied changing his

210 (RRVI-235, 236, 266).

211 (RRVI-238-239,268,270,271-272).

212 (RRVI-241).

213 (RRVI-243-243).

214 (RRVI-275, 276).

215 (RRVI-276).

216 (RRVI-276).

217 (RRVI-276).

218 (RRVI-249-250,252).

219 (RRVI-255-256).

21

story.220 During his testimony, Ates volunteered without objection that one could

only be an ABT member if he had been to prison.221 The jury found appellant

guilty as charged.222

SUMMARY OF THE ARGUMENT

More than sufficient evidence outside of the accomplice witnesses tended to

connect appellant to the murder. Rose’s testimony, Stella’s testimony, the physical

evidence, and the text messages connected appellant to the crime.

The trial judge properly found from the evidence that Stella was not an

accomplice. Yet, even had she been, the error did not cause egregious harm when

Rose’s testimony, the firearm’s evidence, and the text messages sufficiently

connected appellant.

The comments the prosecutor made during guilt phase closing argument

amounted to proper summation, reasonable deductions, and invited argument. The

trial court did not err by overruling appellant’s objections, but had she the

comments did not cause substantial and injurious harm. The prosecutor did not

make a specific comment on appellant’s failure to testify, but had she, no harm

resulted.

220 (RRVI-280, 281).

221 (RRVI-286).

222 (RRVIII-5).

22

Brown’s statement that appellant was “in and out of prison,” was cured by

the trial court’s instruction to disregard and the same evidence came in without

objection waiving error.

The prosecutor did not deliberately conceal Brown’s recorded statement, and

the trial court broke to give defense counsel an opportunity to hear the recording

during trial. No prejudice resulted from the delayed disclosure and nothing

demonstrated it contained Brady material.

The trial judge did not abuse her discretion by allowing the read back

testimony the jury requested. She read the questions and answers relevant to the

jury’s inquiry and the necessary context information to make it make sense.

Any error in a failure to arraign appellant on his felony enhancement

paragraphs did not harm him.

Trial counsel did not perform deficiently by failing to object to the lack of an

accomplice witness instruction for Stella because she did not act as an accomplice.

The order of the parties law and the accomplice instructions was not erroneous so

any objection meritless. Trial counsel repeatedly objected to admissibility of the

ABT evidence, the trial court considered it, and overruled the objections because

the gang evidence was relevant and admissible to show motive.

Appellant did not preserve error to his claim that the State improperly

impeached Miller and Brooks.

23

REPLY TO APPELLANT’S FIRST POINT OF ERROR

Appellant first contends that the evidence was insufficient to corroborate the

accomplices. Appellant premises his sufficiency argument on Stella being an

accomplice, and claims Rose’s testimony alone is not enough to connect him.

Appellant ignores not only Stella’s testimony, but also the physical evidence which

included firearms evidence, text messages, the ABT connection, and the gas station

photographs. Considering the evidence as a whole, it tended to connect appellant

to the murder.

I. The standard of review and applicable law on sufficiency and corroboration of accomplice testimony

In reviewing the legal sufficiency of the evidence, the appellate court

determines whether, when viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt.223 This standard of review applies to both

direct and circumstantial evidence.224

The jury is the exclusive judge of the facts, the credibility of the witnesses,

and the weight given to the witnesses’ testimony. 225 The jury may reasonably infer

223 Jackson v. Virginia, 443 U.S. 307, 319 (1979).

224 King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995).

225 Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App. 1981).

24

facts from the evidence presented, credit the witnesses it chooses to, disbelieve any

or all of the evidence or testimony proffered.226

The Texas legislature stated in article 38.14 of the Texas Code of Criminal

Procedure that, “A conviction cannot be had upon the testimony of an accomplice

unless corroborated by other evidence tending to connect the defendant with the

offense committed; and the corroboration is not sufficient if it merely shows the

commission of the offense.”227 The reviewing court assesses the sufficiency of

corroborating evidence by eliminating from consideration the testimony of the

accomplice and examining the other evidence to ascertain if it tends to connect the

accused with the commission of the offense.228

“The non-accomplice evidence need not be sufficient in itself to establish the

accused’s guilt beyond a reasonable doubt…Nor is it necessary for the non-

accomplice evidence to directly link the accused to the commission of the

offense.”229 The prosecution satisfies the accomplice witness rule, “if there is some

non-accomplice evidence which tends to connect the accused to the commission of

the offense alleged in the indictment.”230

226 Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986).

227 TEX. CODE CRIM. P. ANN. art. 38.14 (West 2005).

228 St. Julian v. State, 132 S.W.3d 512, 516 (Tex.App. – Houston [1st Dist.] 2004, pet. ref’d)(citing Hernandez v. State, 939 S.W.2d 173, 176 (Tex.Crim.App. 1997)).

229 Hernandez, 939 S.W.2d at 176.

230 Id. (emphasis original).

25

The Texas legislature statutorily imposed a sufficiency review under the

accomplice-witness rule.231 It is not derived from federal or state constitutional

principles that define the legal and factual sufficiency standards.232 The burden

upon the prosecution requires only that it provide some other evidence tending to

connect the defendant to the offense.233 The Court considers a witness an

accomplice if the person participated with the accused before, during or after the

commission of the crime.234 A witness is an accomplice as a matter of law when

charged with the same offense or a lesser included of the offense for which the

defendant is tried.235

II. The jury heard more than sufficient evidence to establish appellant’s guilt apart from accomplice testimony

Ample evidence corroborated the accomplice evidence in this case and

connected appellant to the crime. The proper focus is not whether the other

evidence standing alone sufficiently establishes guilt, but whether after eliminating

from consideration the accomplice testimony, the other evidence is inculpatory and

tends to link appellant to the crime.236 While individually a circumstance might

not be sufficient to corroborate the accomplice testimony, taken together, if

231 Cathey v. State, 992 S.W.2d 460, 462-463 (Tex.Crim.App. 1999).

232 Id.

233 Id. at 463.

234 Kunkle v. State, 771 S.W.3d 435, 439 (Tex.Crim.App. 1986)(citations omitted).

235 Druery v. State, 225 S.W.3d 491, 498 (Tex.Crim.App. 2007).

236 Snyder v. State, 68 S.W.3d 671, 677 (Tex.App.—El Paso 2000, pet. ref’d).

26

rational jurors could conclude that the evidence sufficiently tended to connect

appellant to the offense the evidences suffices.237

a. The text messages connected appellant to the crime

Tara Brown’s texts to Hourshad repeatedly referred to “we” when she asked

if he knew “we are coming”, “we are on our way”, and “we will be right back”.238

She texted, “[t]here are about to be three people coming in don’t be by the door or

by him don’t worry.”239 Rose heard appellant and Brown together over Brooks’

call while Brown texted “we.”240 Rose heard appellant tell Brooks, “I got him”

shortly before he mentioned “Sergio.”241 Rose’s testimony with the texts identified

appellant.

b. Rose Preece’s testimony connected appellant to the crime

Rose heard Brown’s and appellant’s voice on the call.242 And Brooks

identified them.243 The call established that Brown and appellant were together,

237 Hernandez, 939 S.W.2d at 178-79 (holding suspicious circumstances filled sufficiency gap left by evidence of appellant’s mere presence at the scene of the offense); Paulus v. State, 633 S.W.2d 827, 846 (Tex.Crim.App. 1981) (evidence showing motive or opportunity can be considered in connection with other evidence tending to connect the accused to the crime)).

238 (State’s Exhibit No. 2).

239 Id.

240 (RRIV-276,277,278,279,280,281).

241 (RRIV-278, 282).

242 (RRIV-279).

243 (RRIV-281).

27

and that they found the person Brooks wanted.244 Appellant referred to Brown and

Saldana during the call, “Tara can talk to him, this guy, Sergio, that Tara can talk

to him and get him to go somewhere.”245

Rose understood that Brooks and appellant “were just going to be beating

this guy’s ass[.]”246 The call caused such a disturbance in Brooks’ truck that Stella

insisted Brooks stop to let Rose out of the car, but she saw Kazee, Stella, and

Brooks leave together.247 Rose said appellant “pull[ed] [his] card” because the

meant Brooks had to participate or lose status.248

After the murder, Rose confronted appellant about involving Stella and

getting her in trouble.249 Rather than deny involvement or claim no knowledge or

intent, appellant responded “I’m sorry.”250 A defendant’s confession to

committing the crime may be sufficient to corroborate an accomplice’s testimony

“so long as proof of the confession does not depend upon the testimony of the

accomplice.”251 Rose testimony alone connected appellant to the crime based on

244 (RRIV-278-281).

245 (RRIV-282).

246 (RRIV-282).

247 (RRIV-281, 282-283, 285).

248 (RRIV-284-285).

249 (RRIV-288, 289).

250 (RRIV-289).

251 Snyder, 68 S.W.3d at 677 n. 5; Mays v. State, 726 S.W.2d 937, 942 (Tex.Crim.App. 1986)).

28

his comments about using Brown to get Brooks close to “Sergio” on the same day

three men murdered Sergio Saldana.

c. Stella Preece connected appellant directly to the murder

The trial court decided the evidence did not raise a fact issue about whether

Stella was an accomplice.252 It did not include her on the list of people that could

have been charged with the murder or a lesser-included of it.253 As addressed in

the State’s response to the next point of error, an instruction on Stella was not

required, and this Court should consider Stella’s testimony in its sufficiency

analysis.

Stella was with Rose and Brooks when Brooks received the call from

appellant.254 They left the game room to meet appellant and Brown.255 During the

ride, Brooks received another call from appellant, and the call upset Stella because

she did not want to go with Brooks to meet with appellant and Brown, and she did

not want Rose to go.256 She knew from the call there would be “trouble” and she

did not want to go.257 She and Kazee tried to talk Brooks out of going.258

252 See (CR-160-162).

253 Id.

254 (RRIV-226, 227).

255 (RRIV-227).

256 (RRIV-228-229).

257 (RRIV-229).

258 (RRIV-230).

29

They ran out of gas, Brooks called appellant, and appellant took Brooks to

get more.259 Stella understood they were going to see “Sergio.”260 Sergio was the

man Brooks had a previous altercation with.261 Appellant told Brooks where to

find Sergio, and they were headed to him.262 Brooks followed appellant’s truck

there.263 They could not have gone without appellant showing them the way.264

At the house, appellant got out with Brooks and Kazee.265 They went into

the house as appellant led the charge.266 They came out a few minutes later,

walked fast, and appeared shaken up.267

Stella later talked to appellant and learned something happened when they

went inside.268 The day after, she learned that Sergio Saldana had been

murdered.269 Stella’s testimony more than sufficed to connect appellant to

Saldana’s murder.

259 (RRIV-228).

260 (RRIV-231).

261 (RRIV-231-232).

262 (RRIV-232).

263 (RRIV-232).

264 (RRIV-233-234).

265 (RRIV-234).

266 (RRIV-235).

267 (RRIV-236).

268 (RRIV-241).

269 (RRIV-241).

30

d. The gas station surveillance photographs corroborated the accomplice witness testimony and tended to connect appellant to the crime

Circumstantial evidence may corroborate accomplice testimony and connect

a defendant.270 To corroborate Stella’s testimony and link appellant to the crime,

the State presented photographs from the gas station where appellant took

Brooks.271 The date and time corroborated Brown, Kazee, and Stella’s testimony

about Brooks running out of gas and appellant getting more to get them to Saldana.

e. The firearms evidence tended to connect appellant to the crime

The firearms evidence further connected appellant to the murder. Brown

testified that appellant left the truck to go into Hourshad’s house carrying a nine-

millimeter semiautomatic handgun.272 She knew him to carry a nine-millimeter in

the truck.273 Kazee saw Brooks holding a revolver and appellant with a black

semiautomatic handgun.274

Police recovered two projectiles and one casing from the bedroom. 275 One

of the projectiles was consistent with being fired from a revolver, and the casing

270 Smith v. State, 332 S.W.3d 425, 442 (Tex.Crim.App. 2011) (citations omitted).

271 (RRIV-117; State’s Exhibit No. 19-24); compare (State’s Exhibit No. 23) (surveillance photograph) with (State’s Exhibit No. 25) (identification photograph of appellant).

272 (RRIV-137, 138).

273 (RRIV-138).

274 (RRIV-196, 197).

275 (RRVI-45,54,55,57,61,73-75).

31

and other projectile from a nine-millimeter semiautomatic.276 At least two

different firearms produced the evidence.277 The types of firearms used during the

murder provided additional circumstantial evidence which tended to connect

appellant to the murder. The Court of Criminal Appeals in Hernandez v. State held

that “Proof that connects appellant to a weapon similar to that used in the offense is

another circumstance to be considered when determining the sufficiency of

evidence to corroborate the accomplice.”278

f. Appellant fled after the murder and hid from police

The investigator searched for appellant and Brown after the murder, but

could not locate them.279 Appellant changed his cell phone so when police tried to

“ping” it to locate him, the number was no longer active.280 Appellant’s deliberate

flight after the murder and attempt to hide from police connected him to the

crime.281 The Court of Criminal Appeals held that flight and guilty demeanor

276 (RRVI-85,90-91,94,95,97,98,104).

277 (RRVI-97).

278 Hernandez, 939 S.W.2d at 178 (“[E]ven evidence that a defendant had a gun which was merely similar to the murder weapon may corroborate accomplice testimony.”).

279 (RRVI-138-139,140,142,154).

280 (RRVI-154).

281 See Hernandez, 939 S.W.2d at 178 (“Evidence of flight and guilty demeanor, coupled with other corroborating circumstances, may tend to connect a defendant with the crime.”); Passmore v. State, 617 S.W.2d 682, 685 (Tex.Crim.App. 1981) (evidence presented at trial showing flight corroborates accomplice testimony).

32

coupled with other corroborating circumstances may serve to corroborate

accomplice testimony.282

g. Appellant’s motive to participate in the murder connected him

The evidence of appellant’s connection with and enforcer status in ABT

tended to connect him to the murder. Appellant was a member of ABT.283 He

bore tattoos consistent with status as ABT.284 Rose knew appellant as an ABT

member and an enforcer for it.285 Brooks’ had a prior altercation with Saldana,

appellant pulled Brooks’ card to make him live up to his threats.286 Appellant

began the call by telling Brooks had asked “for anybody to…stop and get this

guy.”287

ABT members must sign a Blind Faith Commitment and follow orders

without question or face discipline.288 As a captain, Brooks could give orders to

lower ranking Kazee and appellant.289 The gang evidence showed appellant’s

motive to participate in the crime and assist Brooks in retaliating against Saldana.

282 Id.

283 (RRIV-254, 258, 259, 261).

284 (RRIV-261,262,264-265,268,312-313).

285 (RRIV-295, 296, 297).

286 (RRIV-232, 284-285).

287 (RRIV-279).

288 (RRIV-304, 306, 307).

289 (RRIV-304, 306, 310).

33

h. Considered as a whole, evidence outside of accomplice testimony tended to connect appellant to the murder

The Court of Criminal Appeals explained, “[t]he sufficiency of non-

accomplice evidence is judged according to the particular facts and circumstances

of each case.”290 When the record presents conflicting views of the evidence with

one tending to connect the defendant and the other not, a reviewing court must

defer to the factfinder’s resolution.291 The jury was properly charged on

accomplice evidence, they knew it needed corroboration, and they found from the

non-accomplice evidence that it tended to connect appellant to this murder.292

Viewed in its totality, the physical evidence, surveillance photographs, text

messages, and the Preece sisters’ testimony more than sufficed connect appellant

to Saldana’s murder.293 This Court must overrule appellant’s first point of error.

REPLY TO APPELLANT’S SECOND POINT OF ERROR

The trial court concluded that Stella Preece was not an accomplice in

Saldana’s murder. The jury charge was not erroneous. Yet, even had the trial

court erred by failing to include an accomplice as a matter of fact instruction on

290 Smith, 332 S.W.3d at 442.

291 Id.

292 (CR-160-162, 170; RRVII-17,18,20-22,24-25,38-39,44,47-48,51-52,59,64).

293 Smith, 332 S.W.3d at 442; Hernandez, 939 S.W.2d at 176-179 (evidence the defendant was with the complainant two hours before the killing, two people killed the victim, the defendant fled after the murder, the defendant in the past possessed one of the types of weapons, and the defendant drank the type of beer found at the scene sufficient to corroborate accomplice evidence).

34

Stella, egregious harm did not result because other non-accomplice evidence

tended to connect appellant to the murder.

I. The standard of review and applicable law regarding charge error and accomplice witness instructions

Reviewing courts consider jury charge error in a two-step process: (1)

determining whether error occurred, and if so, (2) whether the error caused

sufficient harm to warrant reversal.294 The amount of harm necessary for reversal

depends upon whether trial counsel preserved the complaint.295

Absent objection a reviewing court should not reverse unless the error

caused egregious harm denying appellant a fair trial.296 The Court examines “the

entire jury charge, the state of the evidence, including the contested issues and

weight of probative evidence, the argument of counsel, and any other relevant

information revealed by the record of the trial as a whole” when considering

egregious harm.297 Appellant must suffer some actual, not theoretical, harm.298

A witness is an accomplice when she participates with the defendant before,

during, or after the commission of the crime charged, and she acts with the

294 Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994).

295 Id.

296 Almanza, 686 S.W.2d at 171; see also Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App. 2008).

297 Id.

298 Warner, 245 S.W.3d at 461.

35

required mental state.299 Accomplice status may exist under Texas Penal Code

Section 7.02(a) or 7.02(b) because the witness could be charged with the same or a

lesser included of the charged offense.300

To be an accomplice, the person must act ‘“with the requisite culpable

mental state,’ and perform[ ] an ‘affirmative act that promotes the commission of

the offense with which the defendant is charged.’”301 One is not an accomplice if

merely present during the offense, or even if the person knew about the crime,

failed to disclose it, or concealed it.302 When the evidence does not demonstrate an

ongoing conspiracy to attempt or carry out a felony made by the alleged

accomplices, or affirmative acts to assist in the murder, no instruction is

required.303

The testimony of a witness without complicity in the charged offense is not

accomplice-witness testimony, regardless of the person’s complicity with the

accused in other offenses unless the person was involved in a conspiracy to commit

one felony, the murder was committed in furtherance of that conspiracy, and that

the witness should have anticipated that a murder could result from the

299 Paredes v. State, 129 S.W.3d 530, 536 (Tex.Crim.App. 2004) (citing TEX. PENAL CODE ANN. §7.02(a)(2) (West 2006)) (emphasis added).

300 Zamora v. State, 411 S.W.3d 504, 510-11 (Tex.Crim.App. 2013).

301 Id. at 510 (quoting Cocke v. State, 201 S.W.3d 744, 747 (Tex.Crim.App. 2006)).

302 Blake v. State, 971 S.W.2d 451, 454 (Tex.Crim.App. 1998).

303 Paredes, 129 S.W.3d at 539.

36

conspiracy.304 When the evidence is conflicting and the status is not clear on the

witness’s accomplice-status, the trial court should leave the question to the jury

after defining the term.305

II. Stella was not an accomplice

The evidence did not support the conclusion that Stella Preece acted as a

party under a Texas Penal Code section 7.02(a), and the evidence did not raise the

theory that Stella was a party pursuant to section 7.02(b) as a coconspirator.306

304 See Gamez v. State, 737 S.W.2d 315, 322 (Tex.Crim.App. 1987); see also Zamora, 411 S.W.3d at 510-11 (citing TEX. PENAL CODE ANN. §7.02(b) (West 2006), but explaining the evidence raised the theory when the jury was charged on coconspirator liability in the party’s instruction on the charged offense); TEX. PENAL CODE ANN. §7.02(b) (West 2011) (defining party liability under a coconspirator theory).

305 Paredes, 129 S.W.3d at 536.

306 See (CR-157-158, 160) (defining party status to including only the section 7.02(a) definition); (RRIV-47-52, 59; State’s Exhibit No. 2) (Hourshad communicated only with Brown and appellant, and he saw three men in the room); (RRIV-105-111,113- 145-145;State’s Exhibit No. 2) (Brown did not implicate Stella in acts leading up to or following the murder, and indicated she was merely present in Brooks’ truck at the time); (RRIV-192-205) (Kazee explained there was no discussion about what would happen or what anyone should do, and he confined Stella’s actions to driving them to a gas station afterwards); (RRIV-226-241) (Stella said there was no discussion of what would happen, of where they would go, she begged Brooks not to go, she confined her actions to driving away, but stating she saw no guns, did not hear gunshots, and learned of the death the following day); (RRIV-278-285) (Rose stated Stella left as a passenger in the car, Stella tried to convince Brooks not to go, they did not discuss what would happen, she did not see any weapons in the car, and no one talked of shooting or killing); see also TEX. PENAL CODE ANN. §7.02 (West 2011) (defining under (a) that a person is criminally responsible when she “act[s] with the intent to promote or assist in the commission of the offense” and she “solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense” and defining under (b) “in the attempt to carry out a conspiracy to commit one felony, another felony is committed by one of the conspirators, all conspirators are guilty of the felony actually committed, though having no intent to commit it, if the offense

37

a. Stella was not an accomplice under Texas Penal Code Section 7.02(b)

It is important to note that the trial court did not instruct the jury on a 7.02(b)

theory of liability for appellant’s guilt or in the accomplice instructions.307 In

Zamora v. State, the jury instructions included the 7.02(b) coconspirator language

for the parties instruction, but not for the accomplice witness instructions.308 The

Court referenced Parades v. State to find error because the trial court in Parades

had instructed on the conspiracy aspect of parties law, and the defendant argued

accomplice-witness status under that theory.309

Appellant’s argument that Stella was a coconspirator as an accomplice under

7.02(b), was not the basis upon which the jury determined appellant’s guilt as a

party or the status of the accomplice witnesses.310 Only a theory of direct action as

the principal perpetrator and his soliciting, encouraging, directing, aiding or

attempting to aid while he had the requisite intent to promote or assist in the

was committed in furtherance of the unlawful purpose and was one that should have been anticipated as a result of carrying out the conspiracy.”).

307 (CR-157-158,160).

308 Zamora, 411 S.W.3d at 508.

309 Id. (quoting Paredes, 129 S.W.3d at 538-39).

310 Compare (CR-157-158,160) with Zamora, 411 S.W.3d at 508-511 (addressing need for a sua sponte instruction on accomplice witness as a matter of fact based on a section 7.02(b) theory of the witness being a party); Paredes, 129 S.W.3d at 539 (addressing applicability of section 7.02(b) to determining party status but finding there was no evidence the witnesses were conspirators in carrying out a felony when the murders were committed).

38

commission of the murder were proffered as the theory of appellant’s party

liability.311

However, were this Court to consider section 7.02(b) to determine Stella’s

status, no evidence presented during trial indicated that she conspired to commit a

felony. All the evidence indicated that no discussion occurred in Brooks’ truck

about what would happen when they reached the house.312 No weapons were

visible in his truck.313 There was no talk of killing Saldana, and although Kazee,

Rose, and Stella thought that Saldana might be assaulted, the only discussion in the

car was about Brooks and appellant getting Saldana somewhere.314

Rose testified that she found out “after the fact” that they intended to beat

someone up.315 She assumed they meant to “kick [Saldana’s] ass[,]” but all she

heard in the car was “that they were going to get him somewhere.”316

Stella understood even less because Brooks did not mention his intent to

harm Saldana to her, and she thought he intended to “talk some shit maybe.”317

311 (CR-157-158, 160).

312 (RRIV-157-158,191,194,203,211-213,230,231, 234-235,245,246-247,279-283,293- 294).

313 (RRIV-196, 235, 247, 294).

314 (RRIV-194, 211-213, 247, 280, 282-283, 294).

315 (RRIV-280).

316 (RRIV-293-294).

317 (RRIV-245, 246

39

She had seen Brooks “talk a lot of shit.” But there was no plan to harm Saldana or

discussion that they would “do this or that[.]”318

Even Kazee did not indicate there was any sort of a plan or discussion of

what would follow. He understood they were going to beat Saldana up, but Brooks

had previously made known to all members of ABT that they should “take violent

action against” Saldana.319 Kazee did not hear any specific plans on what would

occur, and likely formed his understanding of Brooks’ intention to assault Saldana

on the past order.

Nothing in the record supports the conclusion that Stella was part of a

conspiracy to commit a felony, that the murder occurred in furtherance of that

felony, or that she should have anticipated that it would result from the conspired

felony.320

b. Stella was not an accomplice under Texas Penal Code Section 7.02(a)(2)

The record does not support the conclusion that Stella had the requisite

intent to promote or assist Brooks or appellant to commit the murder, or that she

solicited, encouraged, directed, aided, or attempted to aid Brooks or appellant to

commit the murder.321 On the contrary, she begged Brooks not to go meet with

318 (RRIV-245-247).

319 (RRIV-183-184, 185-186, 190, 191, 211-213).

320 See TEX. PENAL CODE ANN. §7.02(b) (West 2011).

321 See TEX. PENAL CODE ANN. §7.02(a) (West 2011).

40

Saldana.322 She clearly had no intention to promote or assist appellant or Brooks in

commit the murder.

The evidence does not indicate that Stella knew about the murder or had any

reason to believe that driving Brooks from the scene would assist Brooks and

appellant to commit the crime. Because the accomplice-witness statute does not

define the term accomplice, the Court of Criminal Appeals defined it “as someone

who, under the evidence, could have been charged with the same or a lesser-

included offense as that with which the defendant was charged.”323 Stella could

not have been found guilty under section 7.02(a)(2), and was not an accomplice.324

In Gross v. State, the Court of Criminal Appeals considered evidence of

post-offense behavior of someone alleged to have been a party, and found the

evidence insufficient.325 It held that post-offense conduct standing alone is not

sufficient to prove one’s guilt as a party. 326 Instead, to prove guilt, “[t]here must

also be sufficient evidence of an understanding or common scheme to commit a

crime.”327 The evidence in Gross was insufficient because the defendant could not

322 (RRIV-230, 245, 280).

323 Zamora, 411 S.W.3d at 510 (citing Medina v. State, 7 S.W.3d 633, 641 (Tex.Crim.App. 1999)).

324 See id.; see also Gross v. State, 380 S.W.3d 181, 186-88 (Tex.Crim.App. 2012) (holding post-offense conduct standing alone is not enough to establish party status under section 7.02).

325 Gross, 380 S.W.3d at 326 Id. at 188.

327 Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex.Crim.App. 2004)).

41

have anticipated that his passenger would shoot, he did not encouraged him to

shoot, and no evidence showed a “contemporaneous plan to shoot the victim[.]”328

Although the defendant drove the shooter away from the scene after he heard the

gunshot, the Court held that the evidence was insufficient to prove guilt as a party

to the murder.329

The evidence from all the witnesses established that Stella was not a part of

a plan to kill Saldana.330 Any plan existed solely between appellant and Brooks.

She could not have anticipated that the men would use guns, she did not seem them

take guns, and she did not hear a gunshot before she drove away.331 She did not

encourage Brooks to engage in the violent conduct and actively discouraged it.332

She was no guiltier as a party than Gross, and therefore was not an accomplice

under section 7.02(a)(2). The trial court did not err by failing to include Stella in

the accomplice-witness instructions.333

328 Id. at 187-88.

329 Id. at 183-184, 187-89.

330 (RRIV-157,158,191,194,203,211-213,230,231,234,235,245,246-247,279-283,293- 294).

331 (RRIV-196, 235, 236, 247, 294).

332 (RRIV-230, 245, 280).

333 See Gross, 380 S.W.3d at 187-189; see also Zamora, 411 S.W.3d at 510 (addressing the definition of an accomplice-witness to include section 7.02(a)(2) parties).

42

III. Egregious harm did not result

Yet, even were this Court to consider the second prong of Almanza, it

considers whether egregious harm resulted because appellant did not object.334

The Court of Criminal Appeals applies the egregious harm standard to unpreserved

claims of accomplice-witness instructions.335 Even had the trial court erred by

failing to include an accomplice as a matter of fact instruction on Stella as “law

applicable to the case,” the error did not result in egregious harm.336

To determine whether the failure to instruct on the accomplice witness

would have caused jurors to find “the corroborating evidence so unconvincing in

fact as to render the State’s overall case for conviction clearly and significantly less

persuasive,” the reviewing court considers the record as a whole to determine

egregious harm, considering the strength of the corroborating evidence which is a

function of its: (1) reliability or believability; and, (2) how compellingly it tends to

connect the accused to the charged offense.337

In this case, there was a considerable amount of corroborating evidence

tending to connect appellant beyond Stella’s testimony. The physical evidence

corroborated the accomplices. Police recovered a bullet consistent with a nine-

334 See Herron v. State, 86 S.W.3d 621, 632 (Tex.Crim.App. 2002);(RRVII-4).

335 Saunders v. State, 817 S.W.2d 688, 692 (Tex.Crim.App. 1991); Casanova v. State, 383 S.W.3d 530, 533 (Tex.Crim.App. 2012).

336 See id. et al.

337 Casanova, 383 S.W.3d at 534, 359.

43

millimeter and one consistent with a revolver, there were two shots fired by two

guns, and the angle at which the bullet entered the mattress was consistent with

Hourshad’s recollections of the events after the shooting.338

The text messages corroborated by Rose’s testimony connected appellant, as

well as Rose’s overhearing of the telephone call.339 Finally the ABT connection,

the gas station photographs, his flight from police, and the circumstantial evidence

connected appellant.340 The reliability of the independent corroborating evidence

in the form of photographs, physical evidence, and Rose’s testimony compellingly

connected appellant to the murder.

The Court of Criminal Appeals explained a missing accomplice-witness

instruction reviewed for egregious harm is generally harmless “unless the

corroborating (non-accomplice) evidence [was] ‘so unconvincing in fact as to

render the State’s overall case for conviction clearly and significantly less

persuasive.’”341 Only in a case where the evidence had a weak tendency to connect

the defendant to the crime and was contradicted by other evidence, did the error

338 Compare (State’s Exhibit No. 82-87, 118; RRIV-45, 56, 57; RRVI-85, 86, 91, 94, 95, 97, 98, 104, 168-172)(firearms evidence) with (RRIV-57-60)(Hourshad’s recollections); (RRIV-137, 208)(descriptions of guns used).

339 (State’s Exhibit No. 2; RRIV-122-130, 278-282, 294).

340 (RRIV-115-118, 187-190, 193-194; State’s Exhibit No. 19-24).

341 Herron, 86 S.W.3d at 632.

44

rise to a level requiring reversal.342 In this case, no evidence contradicted the

physical evidence, surveillance photographs, or Rose’s testimony.

All things being equal, even on a “some harm” analysis, the non-accomplice

evidence would need to be stronger than in an egregious harm analysis.343

Reviewing courts also consider the tenuousness of the evidence supporting

accomplice-witness status along with the amount of non-accomplice evidence.344

The reliability inquiry is satisfied when: “(1) there is non-accomplice evidence,

and (2) there is no rational and articulable basis for disregarding the non-

accomplice evidence or finding that it fails to connect the defendant to the

offense.”345 The evidence that Stella acted as a willing participate in a pre-planned

murder or aggravated assault was non-existent and the corroborating evidence

strong.

In Medina v. State, the error was harmless under a “some harm” standard for

potential accomplices as a matter of fact.346 The Court of Criminal Appeals in

Medina found there was a substantial amount of non-accomplice evidence, and the

evidence of the witness’s accomplice status was tenuous “barely enough to support

342 Id.

343 Herron, 86 S.W.3d at 633.

344 Id.

345 Id.

346 Medina, 7 S.W.3d at 642.

45

the submission as an accomplice as a matter of fact” instruction. 347 Reviewing this

record as a whole, egregious harm did not result from the lack of an accomplice-

witness instruction on Stella Preece.348

IV. The jury charge correctly instructed on accomplice-witness law and applied the facts to the law

The trial court’s charge included an application paragraph regarding the

accomplices.349 It instructed on accomplice-witness law generally, and then

instructed that: “The witnesses, Tara Cook and Joseph Kazee and Michael

Hourshad, are accomplices,…and you cannot convict the defendant upon their

testimony unless you further believe that there is other evidence in the case outside

of…[their] testimony…tending to connect the defendant with the offense

committed.”350 Appellant’s contention there is “no application paragraph in the

court’s accomplice charge” is inaccurate.351

No statutory or case law requires that the trial court include a separate

credibility requirement with an accomplice-witness instruction. “As a general

proposition, a jury charge that tracks the language of the relevant statute is

347 Herron, 86 S.W.3d at 633.

348 See id.

349 (CR-160-161).

350 (CR-160-161).

351 Compare (Appellant’s Brief-18) with (CR-160-161).

46

sufficient and therefore not erroneous.”352 In this case, the trial court’s accomplice

witness instruction properly tracked the language of article 38.14.353 The

additional instruction “unless the jury first believes that the accomplice evidence is

true” does not appear in article 38.14, and appellant provides not authority that

required its inclusion.354

The charge instructed on the burden of proof, that one accomplice could not

provide corroboration for another, and that the jury was the sole judge of the

credibility of the witnesses, but ordered that the trial court’s instructions govern the

jury.355 The instructions accurately relayed the law applicable to the case.

In reference to appellant’s separate complaint that the accomplice-witness

instructions were confusing and permitted the jury to convict appellant before

assessing the accomplice-witness testimony, the jury charge is read as a whole.356

The jury may consider the parts in the order it chooses, and the charge is not

352 Hernandez v. State, 340 S.W.3d 55, 61 (Tex.App.—Houston [1st Dist.] 2011, no pet.) (citations omitted).

353 Compare (CR-160-161) with TEX. CODE CRIM. P. ANN. art. 38.14 (West 2006)).

354 See (Appellant’s Brief-20-23) (citing McClungs for proposition that a separate credibility instruction was required); but see TEX. CRIM. P. CODE ANN. art. 38.14 (West 2006); (CR-161, 167).

355 (CR-161, 166-167).

356 See Barrios v. State, 283 S.W.3d 348, 352 (Tex.Crim.App. 2009) (holding the jury is left to consider the parts of the charge in the order they choose and that the charge must be considered as a whole).

47

erroneous merely because it might be better practice to order it differently.357

Appellant provides no authority to indicate the trial court erroneously ordered the

charge, or that the jury did not consider the charge as a whole before reaching its

verdict.358 Appellant has not established charge error, much less egregious harm.

Appellant’s second point of error must be overruled.

REPLY TO APPELLANT’S THIRD AND SIXTH POINTS OF ERROR

Appellant’s third and sixth points of error address comments the prosecutor

made during closing statement, some in guilt and one in punishment.359 He

complains about various statements made during the guilty phase argument, and

about a comment in punishment closing that he contends violated his right to

remain silent. Appellant waived error or did not preserve it to most of his

complaints. He cannot show error to the others, and even could he, no harm

resulted.

357 See id. (holding the practice of including “will acquit…and next consider” in the lesser-included offenses instructions was not erroneous when the charge was considered as a whole).

358 See id. (“The trial judge reads the entire charge to the jury before it retires to deliberate; the jurors will thereby have heard the instruction on the benefit of the doubt before considering the issue of guilt on any of the offenses included in the charge.”).

359 The State joins its responses on the third and sixth points because they address closing argument.

48

I. The standard of review and applicable law

The primary purpose of closing argument is to aid and assist jurors in

properly analyzing the evidence to arrive at a just and reasonable conclusion.360

Permissible jury argument falls within one of four areas: (1) summation of the

evidence; (2) reasonable deductions from the evidence; (3) response to argument

by opposing counsel; and (4) pleas for law enforcement.361

The prosecutor may not inject any prejudicial or incriminating facts not in

the record that would mandate a reversal.362 But “[i]f defense counsel invites

argument, then it is appropriate for the State to respond.”363 The State may not

stray beyond the scope of the invitation.364

II. The closing arguments

a. Guilt Phase

Appellant invoked Saldana’s family during closing argument saying they

“deserved better….[b]etter police work, better presentation of this mishmash of

evidence[.]”365 He attacked Kazee, Brown, Hourshad, Stella and Rose.366 He

argued that the non-accomplice evidence failed to corroborate appellant’s

360 Dickinson v. State, 685 S.W.2d 320, 322 (Tex.Crim.App. 1984).

361 Bonier v. State, 738 S.W.2d 726, 730 (Tex.App.—Houston [14th Dist.] 1989, no pet.).

362 Id.

363 Soto v. State, 864 S.W.2d 687, 693 (Tex.App.—Houston [14th Dist.] 1993, pet. ref’d).

364 Johnson v. State, 611 S.W.2d 649, 650 (Tex.Crim.App. [Panel Op.] 1981).

365 (RRVII-33).

366 (RRVII-16-24,26).

49

participation.367 He claimed that he was not trying to be mean to the investigator

during cross but had to show she did not know her case.368

The State responded with the non-accomplice evidence connecting appellant

to the crime.369 On credibility, the prosecutor mentioned without objection that

“when every single one of them walked in this court and took that witness stand,

they put a target on their back….The Aryan Brotherhood of Texas doesn’t send

you flowers when you testify against them.”370 Without objection the prosecutor

stated that Kazee was “as good as dead.” From his demeanor they could see that

“he [was] a marked man.” Roy Ates admitted that Kazee had been “X’d out” by

ABT.371

On Miller’s credibility the prosecutor noted, “…Miller was forced to admit

that apparently, whenever anyone in the Aryan Brotherhood commits a murder—

and he told you about Greg Gammon—he just happens to show up and says the

person didn’t intent to commit the crime.”372 Defense counsel objected “outside

the evidence[,]”the trial court overruled, and reminded the jury to recall the

367 (RRVII-22-24).

368 (RRVII-28).

369 (RRVII-47-48).

370 (RRVII-49).

371 (RRVII-50).

372 (RRVII-54).

50

evidence.373 The prosecutor then argued without objection that Miller admitted he

was present for another ABT murder.374 “That’s what they do. They show up and

they vouch for each other.”375

Addressing Ates’ credibility, the prosecutor argued that his first version

blamed Christina and Nicole.376 Trial counsel objected that the comment was

outside the evidence, the trial court overruled, and reminded the jury to recall the

evidence.377 The prosecutor argued without objection that Ates’ story changed, he

needed a new story, and he offered the same story as Miller.378

The prosecutor discussed the Saldana family and the investigator’s work on

the case.379 She said, “unless you’ve gone into a living room and promised a

family when their family member is dead that you will do everything[.]” 380

Defense counsel objected to outside the evidence, but the trial court overruled the

objection.381 She continued without objection, “Until you have gone into a

family’s living room and until you have prayed with them for justice, you will

never know what that promise is like and the cross that she has beared (sic).”

373 (RRVII-54).

374 (RRIV-54).

375 (RRVII-54).

376 (RRVII-55-56).

377 (RRVII-56).

378 (RRVII-56-57).

379 (RRVII-60).

380 (RRVII-60).

381 (RRVII-60).

51

The prosecutor noted without objection that appellant’s counsel mocked

Stella and Rose.382 The defense witnesses were also derogatory about the

women.383 The defense posed no objections to these arguments.384 Regarding the

investigator’s cross she asked jurors to “think back, [she] took this witness stand

and opposing counsel was extremely derogatory and rude and stood up here in the

corner and tried to get in her face and bully her until the judge....”385 Trial counsel

objected that the State was “striking counsel over the shoulder of the defendant.”386

The trial judge overruled the objection, counsel objected to improper argument,

and moved for a mistrial, but the trial court denied the requests.387 The prosecutor

continued without objection that he “[s]tood right there up in her face, didn’t get

her rattled. And she admitted to the mistakes that she made.”388

After arguing regarding ABT was the motive she said:

They’ve always known all of these people were in the Aryan Brotherhood of Texas. And let’s talk about that, because you would have to be blind, deaf, and dumb not to notice all the people that have come in and out of this courtroom for the last week. If you don’t thinking they

382 (RRVII-57-58).

383 (RRVII-58).

384 (RRVII-57-58).

385 (RRVII-62).

386 (RRVII-62).

387 (RRVII-63).

388 (RRVII-63).

52

were watching the people that testified and making a note of where—389

The defense objected “outside the evidence,” the judge overruled, and reminded

the jury they would recall the evidence.390 The prosecutor continued for another

paragraph without objection about the witnesses fear stating she did not ask for

home addresses because they were scared.391

b. Punishment Phase

In the punishment phase argument, the State highlighted the jury’s power to

do justice for the Saldana family and hold appellant responsible.392 None of the

evidence should cause them to show appellant mercy, as his sister had wanted

them to do.393 Although his family’s claimed he had a rough childhood, “We’ve

all been dealt bad things. None of the rest of us committed murder. They asked

for mercy because mercy is about me. He’s never taken any responsibility. Never

once has he come in here and said what his role is.”394 The defense objected to an

improper comment on the Fifth Amendment.395 The trial judge overruled the

389 (RRVII-64-65).

390 (RRVII-65).

391 (RRVII-65).

392 (RRIX-28).

393 (RRIX-28-29).

394 (RRIX-29).

395 (RRIX-29).

53

objection.396 The prosecutor did not return to it, but followed with their verdict

would hold appellant responsible.397

III. Appellant waived error to all of his guilt phase complaints

A defendant must objection each time the improper jury argument is made

or he waives his complaint regardless of how egregious the argument.398 In each of

appellant’s guilt phase complaints, he either failed to object or he failed to object

each time the prosecutor made the argument.

When the prosecutor commented on Miller showing up in other cases to say

the person lacked intent he objected, but the prosecutor continued the argument

without further objection.399 He waived this error.400 On the Roy Ates argument

about his changing his story, she again continued the argument without further

objection.401 Appellant waived error.402

On the argument that the jury did not know what it was like to promise a

family that you would do everything, after the objection the prosecutor continued

the argument without another objection and commented about the investigator

396 (RRIX-29).

397 (RRIX-29).

398 Temple v. State, 342 S.W.3d 572, 603 (Tex.App.—Houston [14th Dist.] 2010), aff’d on other grounds 390 S.W.3d 341 (Tex.Crim.App. 2013).

399 (RRVI-54).

400 Temple, 342 S.W.3d at 603.

401 (RRVII-56-57).

402 Temple, 342 S.W.3d at 603.

54

having “prayed with them for justice.”403 Because appellant did not object, he

waived error.404

Appellant’s complaints about defense counsel acting derogatory and rude to

the investigator went on without another objection that he “stood right there…in

her face[.]”405 Appellant waived error.406

Appellant did not object to the comment about not asking for home

addresses.407 He objected to an earlier comment about audience intimidation.408

He did not renew the objection despite the lengthy argument continuing.409

Appellant waived error to all of his guilt phase closing complaints by failing

to object or renewing his objections in the trial court, and this Court should not

reach the merits of those claims.410

IV. Most of the prosecutor’s guilty phase arguments were within the scope of proper summation

Yet, had appellant preserved error, the comments were within the bounds of

legitimate argument. First, Miller testified that he knew Greg Gammon, that he did

not know that Gammon was a documented ABT member, and that he gave a

403 (RRVII-60).

404 Temple, 342 S.W.3d at 603.

405 (RRVII-62-63).

406 Temple, 342 S.W.3d at 603.

407 (RRVII-65).

408 (RRVII-65).

409 (RRVII-65-66).

410 Temple, 342 S.W.3d at 603.

55

statement in the Gammon murder case even though he was “not there at the actual

scene” or “around there” during it.411 The prosecutor’s use of hyperbole is not

erroneous when it is a reasonable deduction from the evidence, and jurors are

capable of understanding rhetorical hyperbole.412 The prosecutor’s argument that

Miller shows up and “says the person didn’t intend to commit the crime” when

someone in ABT commits murder was hyperbole based on a reasonable deduction

from the evidence.413

Second, the argument that the investigator never quit on the case because she

promised the Saldana family justice was a reasonable inference from the

testimony.414 The jury learned that the investigator worked for more than a year to

charge appellant and Brooks.415 The comment formed a plea for law enforcement,

a permissible area of jury argument. Appellant also invited it after his invocation

of the Saldana family to claim they “deserved better” than the investigation the

investigator conducted.416

411 (RRVI-249-250, 252 412 Erlandson v. State, 763 S.W.2d 845, 855 (Tex.App.—Houston [14th Dist.] 1988, pet. ref’d) (“Jurors are quite capable of sifting through such hyperbolic tactics.”).

413 See id.; compare (RRVI-249-252) with (RRVII-54).

414 Compare (RRIV-147-168) with (RRVII-60).

415 (RRVI-147-174).

416 Compare (RRVII-33-34) with (RRVII-60-61).

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Third, audience intimidation of witnesses was a reasonable inference from

the evidence. Ates admitted that Kazee had been “X’d out.”417 The FBI Agent

testified that any ABT member cooperating with law enforcement could be

punished with murder.418 The evidence supported the reasonable inference that

testifying placed the State’s witnesses in danger. The record showed the

prosecutor had not asked any of the witnesses their addresses. 419 The argument

was a reasonable deduction from the evidence.

Fourth, the prosecutor’s comment about defense counsel bullying was

invited by his claim that he did not intent to be mean to the investigator.420

V. No harm resulted closing argument

a. Guilty Phase

Yet, even had all of the comments been improper, they were harmless

because they did not cause substantial and injurious harm. Even had the trial court

erred by failing to sustain the objections, it does not require reversal.421 The

comments created no risk that the jury would convict on facts not in evidence.422

They did not raise any constitutional implications, and are reviewed for harm under

417 (RRVI-227).

418 (RRIV-304-306, 308-309, 310, 311, 314).

419 (RRIV-30, 101, 175-176, 223, 271).

420 See (RRVII-28).

421 See Paolilla v. State, 342 S.W.3d 783, 794-95 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d).

422 See id. at 795.

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appellate rule 44.2(b).423 This Court must balance the severity of the misconduct in

terms of the prejudicial effect, any curative measures taken, and the certainty of

conviction absent it.424

The comments were not severe. They were unlikely to create a prejudicial

effect that would have shifted the jury from a not guilty to a guilty verdict.

Although the judge overruled the objections, she reminded the jury multiple times

to “recall the evidence.”425 The arguments did not exaggerate or strengthen the

non-accomplice evidence. Rather, they questioned the credibility of the defense

witnesses and pointed to the efforts made by the investigator.426 Nothing in any of

the guilt phase arguments would have made the State’s case significantly more

persuasive. Even if erroneous, they were harmless.

b. Punishment Phase

Lastly, the prosecutor’s punishment phase closing argument would not have

been taken as a direct comment on appellant’s failure to testify, and it did not harm

appellant. To violate the right against self-incrimination, the offending language

must be viewed from the jury’s standpoint and the implication that the comment

423 Zunker v. State, 177 S.W.3d 72, 84 (Tex.App.—Houston [1st Dist.] 2005, pet. ref’d); see also TEX. R. APP. P. 44.2(b).

424 Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998).

425 (RRVII-54, 56, 65, 426 See Schultze v. State, 177 S.W.3d 26, 45 (Tex.App.—Houston [1st Dist.] 2005, pet. ref’d) (holding comment regarding effect of crime on victim’s parents was outside the record, but harmless because if did not convey specific facts).

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referred to the defendant's failure to testify must be clear.427 It is not sufficient that

the language might be construed as an implied or indirect allusion. 428 The test is

whether the language was manifestly intended or of such a character that the jury

would necessarily and naturally take it as a comment on the defendant’s failure to

testify.429 In applying this standard, the context in which the comment was made

must be analyzed to determine the character.430

The initial comment that appellant had “never taken any responsibility” did

not directly implicate his failure to testify.431 Although, she then eluded to “come

in here,” which could have been taken to refer to the courtroom, it would not

necessarily and naturally have been taken by the jury as a comment on the

defendant’s failure to testify.432 Yet, even had it, when reviewing the record as a

whole, this Court has fair assurance that the error did not contribute to appellant’s

sentence.433

This Court considers under Snowden v. State: (1) the nature of the error,

namely objectionable jury argument; (2) whether it was emphasized by the State;

427 Bustamante v. State, 48 S.W.3d 761, 764 (Tex.Crim.App. 2001).

428 Id.

429 Id.

430 Id.

431 (RRIX-29).

432 See Bustamante, 48 S.W.3d at 764.

433 See Snowden v. State, 353 S.W.3d 815, 821-22 (Tex.Crim.App. 2011) (“The harmlesserror inquiry under Rule 44.2(a) should adhere strictly to the question of whether the error committed in a particular case contributed to the verdict obtained in that case.”)

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(3) the probable implications of the error; and (4) the weight jurors would have

assigned to it during deliberations.434 The prosecutor did not emphatically invite

the jury to consider appellant’s failure to testify.435 After the one brief comment,

she did not return to the topic other than to ask jurors to hold appellant responsible

with their verdict.436 She did not emphasize the comment, and it was not likely to

have swayed the punishment verdict. When faced with a sentencing range of 25

years to life, the jury returned the low-end sentence of 35 years.437 Reviewing the

record as whole, this Court should find beyond a reasonable doubt that the

prosecutor’s comments did not contribute to the sentence.438

This Court should overrule appellant’s third and sixth points of error.

REPLY TO APPELLANT’S FOURTH POINT OF ERROR

Appellant next complains about Brown’s testimony that appellant was “in an

out of prison.”439 But the trial court cured the comment with an instruction to

disregard, and the jury heard the same evidence later without objection.

434 Id. at 822.

435 See (RRIX-29-30).

436 (RRIX-29-30).

437 (CR-174, 182).

438 See id.; see also Snowden, 353 S.W.3d at 822-826.

439 (Appellant’s Brief-27).

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I. Testimony that appellant had been in prison

During Brown’s testimony, she explained that she and appellant “we would

be together and he would get in trouble or going in and out of prison and he’d get

out and get back together.”440 Defense counsel objected, the trial court initially

overruled the objection, but it nevertheless instructed “[j]ury will disregard the last

statement.”441 Ates later admitted members had to go to prison to be ABT.442

II. The instruction and Ate’s testimony cured the error

A trial court’s prompt instruction to disregard generally cures error to a

witness’s reference to the defendant’s past conviction.443 An “uninvited and

unembellished reference to appellant’s prior incarceration—although

inadmissible—was not so inflammatory as to undermine the efficacy of the trial

court’s instruction to disregard.”444 Instructions to disregard generally cure

improprieties that occur during trial because courts presume that the jury will

follow them.445

440 (RRIV-102).

441 (RRIV-103).

442 (RRVI-286).

443 See Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App. 1992) (“It is well-settled that testimony referring to or implying extraneous offense can be rendered harmless by an instruction to disregard…unless it appears the evidence was so clearly calculated to inflame the minds of the jury or is of such damning character as to suggest it would be impossible to remove the harmful impression from the jury’s mind.”).

444 Id.

445 See Gamboa v. State, 296 S.W.3d 574, 581 (Tex.Crim.App. 2009)(holding instruction to disregard of extraneous offense cured error).

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In this case, the prosecutor did not elicit the testimony, but asked only “was

he someone that you would occasionally date?”446 She did not request appellant’s

prison background, the witness volunteered it.447 The trial judge promptly

instructed the jury to disregard.448 There is no reason to believe the jury did not

follow the court’s instruction.449 The comment was not so inflammatory as to

undermine efficacy of the trial court’s instruction.

Likewise, the jury heard the same evidence without objection from Ates

which cured the error.450 Ates’ testimony one had to go to prison to be ABT, along

with evidence of appellant’s documented-status as ABT established his prison

record. The jury heard the same evidence curing error.451 This Court should

overrule appellant’s fourth point of error.

REPLY TO APPELLANT’S FIFTH POINT OF ERROR

Appellant’s fifth point of error accused the State of a willful discovery

violation and claimed the trial court refused counsel access to Brown’s recorded

446 (RRIV-102).

447 Id.

448 (RRIV-103).

449 See Gamboa, 296 S.W.3d at 581.

450 See Leday v. State, 983 S.W.2d 713, 718 (Tex.Crim.App. 1998).

451 See id.; see also Kemp, 846 S.W.2d at 30.

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statement.452 The record refutes appellant’s claims and he has not established a

Brady violation.

I. The record does not support appellant’s claims

At the end of Brown’s testimony, she was released subject to recall by

defense counsel.453 During the investigator’s testimony, defense counsel asked

about the three statement police took from Brown.454 The investigator testified she

recorded the third interview with Brown.455 Defense counsel was told by “the

previous prosecutor that this third recording did not exist,” learning it did he

wanted to hear it.456 The prosecutor did not know about the recording, and said she

would have to get a copy.457 Because the State did not have it, the judge instructed

counsel to continue his cross.458

At the conclusion of the investigator’s testimony, trial counsel again

requested the recording, but he agreed the witness could be excused and he would

proceed with his case.459 At the conclusion of his evidence, counsel stated he

needed to listen to the recording to decide whether to recall Brown or the

452 (Appellant’s Brief-30).

453 (RRIV-174).

454 (RRVI-190-191).

455 (RRVI-191).

456 (RRVI-191).

457 (RRVI-191).

458 (RRVI-192).

459 (RRVI-220-221).

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investigator.460 The trial broke for the day, presumably for the State to obtain the

recording and defense counsel to listen to it.461 The following day, he rested

without presenting any additional witnesses.462 Trial counsel made no further

mention of the recording, he did not object to a failure of the State to procure it, or

to an inability for him to review it. Presumably, when he rested after the break he

had listened to the tape and found nothing to pursue from it.463 He did not raise the

issue again before he rested.

Trial counsel made no Brady objection during the trial. He did not claim

unfair surprise, and he did not pursue a defense from the recording. The record

does not support appellant’s claims regarding a “willful” discovery violation or a

failure to permit inspection during trial.464

II. Appellant’s misplaces his reliance on Oprean v. State

Appellant relies exclusively on Oprean v. State for the proposition that the

trial court erred.465 First, appellant’s claims inaccurately reflect that counsel never

heard the recording during the break conducted for counsel to review it.466

460 (RRVI-289-290).

461 (RRVI-290).

462 (RRVII-4).

463 See (RRVI-289-290; RRIV-4).

464 Compare id. with (Appellant’s Brief-30-32) (claiming the trial court refused to release statement and that the State willfully hid the recording).

465 (Appellant’s Brief-31-33) (citing Oprean v. State, 201 S.W.3d 724 (Tex.Crim.App. 2006)).

466 Id.

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Second, trial counsel and the prosecutor’s comments indicate she did not have a

copy of the recording and did not know about it.467 The investigator dealt with

“several different DAs” while she worked on the case indicating she gave it to

someone else.468

Appellant’s reliance on Oprean is misplaced. In Oprean, the trial court

admitted a recording over defense objection that had not been released during

discovery.469 The Court held that evidence “willfully withheld from disclosure

under a discovery order should be excluded from evidence.”470 No evidence was

introduced in this case counsel could have moved to suppress on this basis.

Oprean addressed a deliberate failure to comply and focused on the “willful

choice” of a prosecutor. It held that the prosecutor’s deliberate deception and

decision not to disclose evidence she intended to present demonstrated willful

conduct.471 This record contains no similar evidence of deception or willful

conduct. Rather, consistent with State v. LaRue, the prosecutor did not willfully

467 (RRIV-191-192).

468 (RRVI-192).

469 Oprean, 201 S.W.3d at 725.

470 Id.

471 Id. at 727-28.

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attempt to keep the recording from defense counsel, but was also unaware of it.472

This Court should overrule appellant’s fifth point of error.

REPLY TO APPELLANT’S SEVENTH POINT OF ERROR

Appellant complains in his seventh point about the “read back” testimony

the trial court provided to the jury in answer to its question as overbroad. But the

trial court included only testimony responsive to the question and necessary to put

it in context.

I. The jury’s requests and the testimony read back

During deliberations, the jury noted on a preprinted form that it disagreed

about the statements of Stella, certified its disagreement, stated the point of

dispute, and requested in Stella testimony about how she identified appellant as

Brooks’ caller.473 The trial court listed the portions it planned to read, but the

defense objected to part of the read back referencing a second phone call, but the

State argued it showed how Stella identified appellant initially.474 The trial court

read that portion, as well.475

472 (RRVI-191-192); Compare id. with State v. LaRue, 152 S.W.3d 95 (Tex.Crim.App. 2004) (holding failure to produce DNA evidence was not “willful” and therefore not entitled to suppression).

473 (CR-154, 155).

474 (RRVII-68-69).

475 (RRVII-70-71).

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II. The read back testimony was responsive to the jury’s question

Texas Code of Criminal Procedure Article 36.28 permits the trial court to

have read to the jury from the court reporter’s notes the part of a witness’s

testimony addressing the dispute when the jurors disagree about the witness’s

statement.476 When a dispute occurs, “the trial court must interpret the

communication, decide what portion of the testimony best answers the question,

and limit the testimony accordingly.”477 A reviewing court does not disturb the

trial court’s ruling absent an abuse of discretion.478

In Brown v. State, the Court of Criminal Appeals considered a claim that the

trial court exceeded the topic of the jury’s dispute in its read back.479 The Court

looked to the scope of the juror’s question and determined it was broad enough to

encompass the testimony.480 Based on the question, the trial court correctly placed

the answer in context with several passages regarding who was in the area because

“the trial court correctly reasoned that the entire testimony between that first

question and the last response was necessary…in response to their question[.]”481

476 TEX. CODE CRIM. P. ANN. art. 36.28 (West 2006).

477 Neal v. State, 108 S.W.3d 577, 579 (Tex.App.—Amarillo 2003, no pet.) (citing Brown v. State, 870 S.W.2d 53, 55 (Tex.Crim.App. 1994)).

478 Brown, 870 S.W.2d at 55.

479 Brown, 870 S.W.2d at 55-56.

480 Id. at 55-56.

481 Id. at 56.

67

To excise the intermediate portions “would have added more confusion rather than

resolved the jury’s question.”482

Similarly, the question was how Stella identified appellant on the call.483

The entire portion of the testimony read back addressed the answer to that

question.484 Part of how Stella identified appellant as the caller was through the

subsequent calls.485 The trial judge did not abuse her discretion by reading back all

the relevant testimony.486 And the court would not have erred even had the

testimony only been necessary context to the answer.487 This Court should

overrule appellant’s seventh point of error.

REPLY TO APPELLANT’S EIGHTH POINT OF ERROR

Appellant’s eighth point of error complains that the trial court improperly

allowed the jury to consider the enhancement paragraphs when the State had not

arraigned him on them. The record is silent as to the trial court arraigning

appellant on the enhancement paragraphs and obtaining his plea. The reading of

the enhancement paragraphs at the punishment phase of trial and obtaining of his

482 Id.

483 (CR-154).

484 (RRVII-70-71).

485 See (RRVII-70-71).

486 See Brown, 870 S.W.2d at 55-56.

487 See id. at 56.

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plea is mandatory.488 Appellant objected before punishment closing argument, and

the trial court overruled the objection but entered “not true” pleas on his behalf.489

The jury instructions allowed for the jury to consider both enhancement paragraphs

and it found them true.490

Because a violation of article 36.01 is not structural in nature, it is subject to

harmless error analysis for non-constitutional harm.491 As this Court concluded in

Linton v. State, appellant did not suffer a substantial or injurious effect from the

failure to arraign him when he did not incriminate himself, he did not take the

stand, and the evidence of his prior convictions was unchallenged. 492 Nothing in

the record would indicate that appellant was “misled into believing the State

abandoned the enhancement allegations” or cause him to incriminate himself.493

The failure to formally arraign appellant did not cause a substantial or injurious

effect on the punishment verdict.494

488 TEX. CODE CRIM. P. ANN. art. 36.01(a) (West 2006).

489 (RRIX-4).

490 (CR-182).

491 Linton v. State, 15 S.W.3d 615, 620-21 (Tex.App.—Houston [1st Dist.] 2000, pet. ref’d) (citing Tex. R. App. P. 44.2(b); Aguirre-Mata v. State, 992 S.W.2d 495, 498 (Tex.Crim.App. 1999)).

492 Compare Linton, 15 S.W.3d at 621 (no harm from failure to arraign on enhancement paragraphs) with (RRVIII-7-18, 33-58) (evidence of priors and defense evidence did not incriminate appellant).

493 See id.

494 See id.; see also Mitchell v. State, No. 01-09-00865-CR, 2011 WL 1755424, at *5 (Tex.App.—Houston [1st Dist.] 2011, pet. ref’d)(not designated for publication) (not harmed by failure to arraign on enhancements).

69

REPLY TO APPELLANT’S NINTH POINT OF ERROR

In his ninth point of error, appellant includes three claims of ineffective

assistance of counsel. Neither the law nor the facts support them.

I. The standard of review and applicable law

Appellant has the burden of proving his trial counsel ineffective. 495 The two

prong test requires proof that: (1) that counsel’s performance was so deficient that

he was not functioning as acceptable counsel under the Sixth Amendment; and (2)

that there is a reasonable probability but for counsel’s error, the result of the

proceedings would have been different.496

II. Trial Counsel did not perform deficiently and his actions did not result in prejudice which undermined confidence in the outcome

a. The jury charge was not erroneous

As demonstrated in the State’s response to appellant’s second point of error,

the jury charge properly relayed the law of the case. The State relies on its

previous arguments to show that trial counsel was not deficient for failing to

request an accomplice-witness instruction on Stella because no view of the record

showed her as a party to murder. Likewise, no law required the trial court to order

the charge as appellant now requests. Read as a whole the trial court would have

495 Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App. 1999).

496 Strickland v. Washington, 466 U.S. 668, 687 (1984).

70

properly overruled trial counsel’s request to reorder it. Appellant has not carried

the heavy burden of proving deficient conduct for either claim.

b. Trial counsel repeatedly objected to the gang evidence

On appellant’s final claim, trial counsel repeatedly objected to the gang

evidence. Before trial he objected to the State identifying the parties based on

ABT titles.497 During Brown’s testimony, trial counsel objected to testimony about

gang connection.498 Before eliciting ABT evidence, the State received permission

from the court because the evidence was relevant and showed motive in the face of

counsel’s extraneous offense objection.499 During Kazee’s testimony the trial court

conducted a hearing to address admissibility of the gang evidence, defense counsel

objected to relevance, but the trial court overruled it.500 He reurged the objection

during testimony.501

Trial counsel is not deficient for failing to lodge an objection unless the trial

court would have erred by overruling it.502 Gang evidence when used to establish

motive is relevant and admissible over a rule 404(b) objection, and not unduly

prejudicial because the “potential character conformity inference does not

497 (RRIV-9-10).

498 (RRIV-52).

499 (RRIV-112-113).

500 (RRIV-186-187).

501 (RRIV-190, 256-260).

502 Ex parte White, 160 S.W.3d 46, 53 (Tex.Crim.App. 2004).

71

substantially outweigh the relevant purpose of showing motive for

the…murder.”503 Even had trial counsel objected under rule 403 and continued to

object to every reference to ABT under rule 404, the trial court would not have

abused its discretion in overruling the objections because membership in ABT

established appellant’s motive.504 This Court must overrule appellant’s ninth point

of error.

REPLY TO APPELLANT’S TENTH POINT OF ERROR

In his final point of error, appellant claims the trial court erred by admitting

an extraneous offense accusation against Miller and Brooks. Appellant waived

error to Miller’s cross and did not object to the question about Brooks committing

other murders. That testimony benefited his defense strategy.

I. Failure to request instruction to disregard waived error to Miller complaint

The State asked Miller about Greg Gammon.505 The prosecutor mentioned

the 2012 murder, and trial counsel objected that the evidence was irrelevant, and

“also impeachment with some kind of extraneous offense.”506 At the end of the

503 Vasquez v. State, 67 S.W.3d 229, 239-40 (Tex.Crim.App. 2002) (trial court did not err to admit gang evidence when motive for robbery and murder despite claims it violated rules 401, 402, 403, and 404); see also Medina, 7 S.W.3d at 643 (evidence of gang membership and rivalries relevant despite rule 401, 403, and 404 complaints when established motive).

504 See id.; Medina, 7 S.W.3d at 643.

505 (RRVI-249).

506 (RRVI-250).

72

bench conference, the trial judge sustained the objection “with regard to going any

further into the facts of that case or his testimony in that case.”507

The State asked if he had been a witness in the Gammon murder case, but

Miller denied being aware anyone was murdered and denied being present for it.508

Trial counsel renewed his relevancy objection, the trial court sustained it, and the

prosecutor moved on to the witness’s testimony about appellant.509 The trial court

sustained appellant’s objections, and he sought no further relief.

To preserve error to a sustained objection, appellant must then move to

instruct the jury to disregard or for a mistrial, but when the trial court gets the relief

requested, and the testimony could have been cured with an instruction to

disregard, appellant waives error by not seeking the instruction.510 The evidence

did not implicate the witness in the murder, but instead explained he was a witness.

Even had the testimony been improper an instruction to disregard would have

cured it.511

507 (RRVI-252).

508 (RRVI-252).

509 (RRVI-252-253).

510 See Cureton v. State, 800 S.W.2d 259, 261 (Tex.App.—Houston [14th Dist.] 1990, no pet.); see also Doherty v. State, 892 S.W.2d 13, 19 (Tex.App.—Houston [1st Dist.] 1994, pet. ref’d) (appellant must timely object, request an instruction to disregard and request a mistrial to preserve error when an instruction would have been sufficient to cure error).

511 See id.; see also Doherty, 892 S.W.2d at 19.

73

II. The Vernon Brooks complaint was unpreserved

Appellant last complains that the trial court permitted the State to ask Miller

if he would be surprised to learn Brooks was under investigation for multiple

murders.512 Appellant did not object to the testimony because his defense was to

blame Saldana’s murder on Brooks.513 Failure to object waives error.514

This Court must overrule appellant’s tenth point of error because he did not

preserve it.

512 (RRVII-259; Appellant’s Brief-45-46).

513 (RRVII-259); see also (RRVII-15-16, 20, 23-24, 27-30, 32-33).

514 Tex. R. App. P. 33.1(a); see also Arana v. State, 1 S.W.3d 824, 829 (Tex.App.— Houston [14th Dist.] 1999, pet. ref’d) (party opposing evidence has burden to object to impeachment evidence or he waives error).

74

PRAYER

The State respectfully requests that this Court affirm the trial court’s

judgment.

DEVON ANDERSON District Attorney Harris County, Texas

/s/ Jessica Caird

JESSICA CAIRD Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274-5826 State Bar Number: 24000608 caird_jessica@dao.hctx.net

75

CERTIFICATE OF SERVICE

I certify that I have requested that efile.txcourts.gov electronically serve a

copy of the foregoing instrument to appellant’s attorney at the following email

address on November 11, 2015:

Lana Gordon Attorney at Law 3730 Kirby, Suite 1120 Houston, Texas 77098 lanagordonlaw@aol.com

/s/ Jessica Caird

JESSICA CAIRD Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002 (713) 274-5826 State Bar Number: 24000608 caird_jessica@dao.hctx.net

76

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document

has a word count of 14,533 words, based upon the representation provided by the

word processing program that was used to create the document.

/s/ Jessica Caird

JESSICA CAIRD Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 274-5826 TBC No. 24000608 caird_jessica@dao.hctx.net