Seldon Wayne Colvin v. State
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Opinion
In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00206-CR ____________________
SELDON WAYNE COLVIN, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 10-05-05646-CR ________________________________________________________ _____________
MEMORANDUM OPINION
In 2011, Seldon Wayne Colvin was convicted of committing a capital
murder and a murder in 1984. He received a life sentence for the capital murder
and a forty year sentence for the murder. Colvin raises seventeen issues. We
affirm the judgments and sentences.
SUFFICIENCY OF THE EVIDENCE
Colvin challenges the sufficiency of the evidence in his first two issues. The
first count of the indictment alleged that Colvin intentionally caused the death of
1 John Buckels by shooting him with a firearm, while Colvin was in the course of
kidnapping Buckels. The indictment‟s second count alleged Colvin intentionally
or knowingly caused the death of Janis McMahan by shooting her with a firearm.
The charges included instructions to the jury on the law of parties. See Tex. Penal
Code Ann. §§ 7.01-.02 (West 2011).
The Standard of Review
We review a challenge to the legal sufficiency of the evidence in the light
most favorable to the verdict to determine if a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see also
Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). In reviewing the
evidence, we give deference to the jury‟s responsibility to resolve any conflicts in
the testimony, to weigh the evidence, and to draw reasonable inference from facts.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The State relied in part upon the testimony of an accomplice, Thomas
Conner. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). In reviewing the
sufficiency of corroboration evidence under the accomplice-witness rule, we
“eliminate the accomplice testimony from consideration and then examine the
remaining portions of the record to see if there is any evidence that tends to
2 connect the accused with the commission of the crime.” Solomon v. State, 49
S.W.3d 356, 361 (Tex. Crim. App. 2001). “[T]he corroborating evidence need not
prove the defendant‟s guilt beyond a reasonable doubt by itself.” Malone v. State,
253 S.W.3d 253, 257 (Tex. Crim. App. 2008). “Rather, the evidence must simply
link the accused in some way to the commission of the crime and show that
„rational jurors could conclude that this evidence sufficiently tended to connect
[the accused] to the offense.‟” Id. (quoting Hernandez v. State, 939 S.W.2d 173,
179 (Tex. Crim. App. 1997)). Moreover, “„[p]roof that the accused was at or near
the scene of the crime at or about the time of its commission, when coupled with
other suspicious circumstances, may tend to connect the accused to the crime so as
to furnish sufficient corroboration to support a conviction.‟” Id. (quoting Brown v.
State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)).
The State also relied in part on the testimony of a “jailhouse informant.” See
Tex. Code Crim. Proc. Ann. art. 38.075 (West Supp. 2012). The same
corroboration standard that applies to accomplice witnesses applies to jailhouse
informants. Schnidt v. State, 357 S.W.3d 845, 851 (Tex. App.—Eastland 2012,
pet. ref‟d).
3 The Evidence
McMahan‟s mother last saw her daughter Janis on September 3, 1984. Janis
left with a man her mother did not see. McMahan‟s mother recalled that they left
in a dark truck that was probably green and had a camper on the back. McMahan‟s
friend, Mark Allred testified that he and McMahan were both abusing
methamphetamine in September 1984. He could not recall the date, but he last saw
McMahan at a house on Newens Street with Buckels, a woman, and three other
men. These men made Allred feel so uncomfortable that he asked McMahan to
step outside and advised her to leave. One of the men was Conner. Afterwards,
Allred wondered where McMahan was for about two weeks before he learned she
had died.
Dan Norris, who at the time worked as a reserve officer for the Montgomery
County Sheriff‟s department, recovered McMahan‟s and Buckels‟s bodies fifteen
miles east of Conroe in Montgomery County on old Highway 105, which in
September 1984 was a dirt road through a heavily wooded area. The bodies‟
advanced decomposition indicated they had been there for some time. Both
Buckels and McMahan died from gunshot wounds. According to firearms
examiner Charles Anderson, each of the bullets had been fired from a .38 or a .357.
Two were jacketed hollow points and one was lead. In Anderson‟s opinion, at
4 least two different weapons were used to fire the three bullets. None of the four
different weapons Anderson tested matched the bullets.
On September 28, 1984, detectives searched McMahan‟s former home on
Carousel in Houston, Texas. Some glass panes had been removed from windows
and placed in the grass in the backyard. Blood recovered inside the house was
eventually determined to be McMahan‟s.
Conner described the circumstances under which Buckels was last seen
alive. Conner‟s participation in Buckels‟s kidnapping made him an accomplice
witness; to corroborate his testimony the State offered evidence of police
surveillance of a green stepside pickup, and an encounter and subsequent arrest of
Colvin, Conner, and Bobby Dobbs1 on September 5, 1984. Acting on a tip from a
confidential informant received two days earlier, Sergeant William T. Callaway
conducted surveillance at the Crossroads Inn on Drummett Street in Houston.
Callaway was looking for three armed men with a green stepside pickup truck. He
knew Colvin‟s and Dobbs‟s names and their room number, 237, and Callaway had
information that the men were going to leave as soon as possible. At 8:45 a.m.,
Conner walked out of a hotel room, approached the truck, and was taken into
custody. The officers moved upstairs to the door of room 237. The persons inside
1 Dobbs is deceased. 5 opened the door, noticed the officers, and moved back into the room. One of the
men moved towards a rifle on the bed. Colvin ran to the back of the room, held his
hands up, and said “I give up.”
Colvin was arrested for possession of a firearm by a felon. Callaway also
recovered a gold badge, a red light “like police use,” jewelry, a .22 pistol,
ammunition, and handcuffs. When he searched the green pickup, Callaway found
“quite a bit” of blood, some of which was fresh and wet. Another officer collected
a sample of the blood, which through DNA testing was subsequently determined to
be McMahan‟s. Callaway impounded the truck to the crime lab and had it checked
for fingerprints. Colvin‟s fingerprint was located on the passenger vent window.
The truck was registered to Beth Renee Hearn. In an interview with police, Hearn
stated that she knew Dobbs and her husband probably loaned the truck to Dobbs.
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In The
Court of Appeals Ninth District of Texas at Beaumont ____________________ NO. 09-11-00206-CR ____________________
SELDON WAYNE COLVIN, Appellant
V.
THE STATE OF TEXAS, Appellee _______________________________________________________ ______________
On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 10-05-05646-CR ________________________________________________________ _____________
MEMORANDUM OPINION
In 2011, Seldon Wayne Colvin was convicted of committing a capital
murder and a murder in 1984. He received a life sentence for the capital murder
and a forty year sentence for the murder. Colvin raises seventeen issues. We
affirm the judgments and sentences.
SUFFICIENCY OF THE EVIDENCE
Colvin challenges the sufficiency of the evidence in his first two issues. The
first count of the indictment alleged that Colvin intentionally caused the death of
1 John Buckels by shooting him with a firearm, while Colvin was in the course of
kidnapping Buckels. The indictment‟s second count alleged Colvin intentionally
or knowingly caused the death of Janis McMahan by shooting her with a firearm.
The charges included instructions to the jury on the law of parties. See Tex. Penal
Code Ann. §§ 7.01-.02 (West 2011).
The Standard of Review
We review a challenge to the legal sufficiency of the evidence in the light
most favorable to the verdict to determine if a rational trier of fact could have
found the essential elements of the offense beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); see also
Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010). In reviewing the
evidence, we give deference to the jury‟s responsibility to resolve any conflicts in
the testimony, to weigh the evidence, and to draw reasonable inference from facts.
Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The State relied in part upon the testimony of an accomplice, Thomas
Conner. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 2005). In reviewing the
sufficiency of corroboration evidence under the accomplice-witness rule, we
“eliminate the accomplice testimony from consideration and then examine the
remaining portions of the record to see if there is any evidence that tends to
2 connect the accused with the commission of the crime.” Solomon v. State, 49
S.W.3d 356, 361 (Tex. Crim. App. 2001). “[T]he corroborating evidence need not
prove the defendant‟s guilt beyond a reasonable doubt by itself.” Malone v. State,
253 S.W.3d 253, 257 (Tex. Crim. App. 2008). “Rather, the evidence must simply
link the accused in some way to the commission of the crime and show that
„rational jurors could conclude that this evidence sufficiently tended to connect
[the accused] to the offense.‟” Id. (quoting Hernandez v. State, 939 S.W.2d 173,
179 (Tex. Crim. App. 1997)). Moreover, “„[p]roof that the accused was at or near
the scene of the crime at or about the time of its commission, when coupled with
other suspicious circumstances, may tend to connect the accused to the crime so as
to furnish sufficient corroboration to support a conviction.‟” Id. (quoting Brown v.
State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)).
The State also relied in part on the testimony of a “jailhouse informant.” See
Tex. Code Crim. Proc. Ann. art. 38.075 (West Supp. 2012). The same
corroboration standard that applies to accomplice witnesses applies to jailhouse
informants. Schnidt v. State, 357 S.W.3d 845, 851 (Tex. App.—Eastland 2012,
pet. ref‟d).
3 The Evidence
McMahan‟s mother last saw her daughter Janis on September 3, 1984. Janis
left with a man her mother did not see. McMahan‟s mother recalled that they left
in a dark truck that was probably green and had a camper on the back. McMahan‟s
friend, Mark Allred testified that he and McMahan were both abusing
methamphetamine in September 1984. He could not recall the date, but he last saw
McMahan at a house on Newens Street with Buckels, a woman, and three other
men. These men made Allred feel so uncomfortable that he asked McMahan to
step outside and advised her to leave. One of the men was Conner. Afterwards,
Allred wondered where McMahan was for about two weeks before he learned she
had died.
Dan Norris, who at the time worked as a reserve officer for the Montgomery
County Sheriff‟s department, recovered McMahan‟s and Buckels‟s bodies fifteen
miles east of Conroe in Montgomery County on old Highway 105, which in
September 1984 was a dirt road through a heavily wooded area. The bodies‟
advanced decomposition indicated they had been there for some time. Both
Buckels and McMahan died from gunshot wounds. According to firearms
examiner Charles Anderson, each of the bullets had been fired from a .38 or a .357.
Two were jacketed hollow points and one was lead. In Anderson‟s opinion, at
4 least two different weapons were used to fire the three bullets. None of the four
different weapons Anderson tested matched the bullets.
On September 28, 1984, detectives searched McMahan‟s former home on
Carousel in Houston, Texas. Some glass panes had been removed from windows
and placed in the grass in the backyard. Blood recovered inside the house was
eventually determined to be McMahan‟s.
Conner described the circumstances under which Buckels was last seen
alive. Conner‟s participation in Buckels‟s kidnapping made him an accomplice
witness; to corroborate his testimony the State offered evidence of police
surveillance of a green stepside pickup, and an encounter and subsequent arrest of
Colvin, Conner, and Bobby Dobbs1 on September 5, 1984. Acting on a tip from a
confidential informant received two days earlier, Sergeant William T. Callaway
conducted surveillance at the Crossroads Inn on Drummett Street in Houston.
Callaway was looking for three armed men with a green stepside pickup truck. He
knew Colvin‟s and Dobbs‟s names and their room number, 237, and Callaway had
information that the men were going to leave as soon as possible. At 8:45 a.m.,
Conner walked out of a hotel room, approached the truck, and was taken into
custody. The officers moved upstairs to the door of room 237. The persons inside
1 Dobbs is deceased. 5 opened the door, noticed the officers, and moved back into the room. One of the
men moved towards a rifle on the bed. Colvin ran to the back of the room, held his
hands up, and said “I give up.”
Colvin was arrested for possession of a firearm by a felon. Callaway also
recovered a gold badge, a red light “like police use,” jewelry, a .22 pistol,
ammunition, and handcuffs. When he searched the green pickup, Callaway found
“quite a bit” of blood, some of which was fresh and wet. Another officer collected
a sample of the blood, which through DNA testing was subsequently determined to
be McMahan‟s. Callaway impounded the truck to the crime lab and had it checked
for fingerprints. Colvin‟s fingerprint was located on the passenger vent window.
The truck was registered to Beth Renee Hearn. In an interview with police, Hearn
stated that she knew Dobbs and her husband probably loaned the truck to Dobbs.
Conner stated that he had known Colvin for only a few weeks when they
were arrested together at the Crossroads Inn on September 5, 1984. They had been
using methamphetamine and heroin. Colvin and Dobbs shared a hotel room at the
Crossroads Inn. On September 4, 1984, Conner went over to their hotel room late
in the afternoon. They had Buckels with them, handcuffed. They asked Conner to
watch Buckels to make sure he did not leave. They did not say why. Conner
watched Buckels for a few hours. Colvin and Dobbs returned to the hotel room and
6 took Buckels away on the floorboard of a forest green GMC stepside pickup truck
with an open bed.
Later that evening, Conner met Dobbs and Colvin again at the Crossroads
Inn. Colvin appeared to be jittery from methamphetamine use. Colvin asked
Conner if he would trade a pistol for some heroin, and Conner agreed. Colvin
wiped down the gun, removed two or three cartridges, and handed it to Conner,
then warned Conner not to “get busted” with the pistol because “two people had
been hurt with this gun.” It was a .38 Charter Arms. Conner traded the gun for
some heroin, which he gave to Colvin. It was close to midnight when Conner
returned to the hotel. The next morning, Dobbs told Colvin that Conner knew too
much, but Colvin told Dobbs not to worry about him. Conner looked out the
window and noticed the truck had a flat tire. He got the keys and went out to
change the tire, then noticed the truck had two flat tires. As soon as Conner
opened the truck, many police officers appeared. One of the officers asked him
what the substance in the back of the truck was. Conner stated that an officer
pushed his face in the substance and some got on his face. Conner confirmed that
it was the same truck in which Dobbs and Colvin left with Buckels the previous
day.
7 Conner, Dobbs and Colvin spent the next three days in the Houston City
Jail. They were released without being questioned by anyone, although Conner
had a parole violation and should have been returned to prison. Conner was
arrested again a few weeks later. He had a .38 Charter Arms firearm in his
possession at that time, but it was not the same gun that was given to him on
September 4, 1984. Montgomery County sheriff‟s officers questioned him about
the murders; he told them some of the same story he told at trial, but he did not tell
them about watching Buckels or selling the gun.
On cross-examination, Conner stated that Larry Pate and Betty Matthews
were with him at about 1:00 p.m. when he first went to Dobbs‟s and Colvin‟s hotel
room, where they found Buckels handcuffed. After they all injected
methamphetamine that Colvin had in his possession, Pate and Matthews returned
to their own room.
Testifying for the defense, Pate denied knowing Dobbs in 1984, denied
being in a hotel room with Dobbs and Colvin, and denied seeing a person in
handcuffs at the Crossroads Inn. After being reminded that in 2010 he told
detectives that he could not honestly say it did not happen, but that he did not
remember seeing it happen, Pate stated that “I can honestly say I don‟t know if that
didn‟t happen. I know it didn‟t happen in my room.”
8 Conner also stated that while he was incarcerated in Texas in 1985 or 1986,
Colvin wrote to a cellmate of Conner‟s, Darrell Jacob, asking Jacob to give Colvin
an alibi for the murders. Testifying for the defense, Jacob admitted he knew
Conner in the 1980‟s, used methamphetamine with him, and was housed in the
same prison dorm as Conner. He also admitted that he knew both Dobbs and
Colvin. Jacob denied that Colvin wrote to him in prison, and he stated when
detectives interviewed him he told them “the same thing I just told you.” On cross-
examination, Jacob admitted that when they were imprisoned together in the
1980‟s, Conner had told him that when the police arrested him they put his face in
some blood in the pickup truck, but he denied recalling that Conner told him
Dobbs and Colvin were also with him. He also denied having told the detectives in
2010 that while they were in prison Conner had related the story about Buckels
being handcuffed. The June 29, 2010, interview was recorded and was played to
the jury. In the recording, it was revealed that Jacob had told the detectives
Conner‟s story about Buckels being in handcuffs.
Bobby Dobson testified that he was living in the northern part of Houston
and using methamphetamine in the 1980‟s. Dobson stated that he was arrested on
a parole violation blue warrant on August 28, 1984. Dobson claimed he was
incarcerated with Colvin in the Harris County Jail and that while they were in jail,
9 Colvin expressed concern about some blood in a truck. Dobson claimed Colvin
told him that Colvin and Dobbs had committed a robbery and went to buy
phenobarbital but shot the seller because he increased the price. He claimed Colvin
told him that something happened at the “Crosswinds Motel,” that they dumped the
body north of Highway 105, and that a woman had also been killed. Dobson was
arrested again at a K-Mart in Houston on May 10, 1985. Dobson stated that he had
a relative contact the Montgomery County Sheriff‟s Department, and they
transferred him to that county, where he gave a statement on May 16, 1985. In that
statement, Dobson claimed Colvin admitted that he and Dobbs killed a man and a
woman, then dumped the bodies north of Highway 105, and Colvin was concerned
that the police had found blood in the truck that they used to carry the dead bodies.
Argument and Analysis
Colvin contends the evidence is insufficient to establish his participation in
the offense because the State failed to pinpoint when his fingerprint came to be on
the truck, failed to recover his DNA from the truck or the crime scene, failed to tie
a weapon used in the murder to him, and failed to connect the murders of
McMahan and Buckels.
Before we may consider the accomplice witness and jailhouse informant
testimony in our evidentiary review, we must determine whether the other
10 evidence tends to connect Colvin to the murders of Buckels and McMahan. See
Solomon, 49 S.W.3d at 361. The accomplice witness and jailhouse informant
testimony is corroborated by the evidence that Colvin, Dobbs, and Conner were
together in a room at the Crossroads Inn on September 5, 1984, and they had
handcuffs and firearms in their possession. On September 5, Colvin was physically
present in a hotel room with the person who borrowed the green truck from its
owner and another person who was apprehended when he approached the truck.
The police connected Colvin to the truck by identifying Colvin‟s fingerprint on the
passenger vent window. McMahan‟s fresh blood was discovered in the truck‟s bed
on September 5, two days after her mother last saw her alive and unharmed, and
about the same time that Allred said he saw her alive and unharmed, in the
company of Buckels and Conner. The bodies of McMahan and Buckels were
dumped together in the same location at some time after September 3, and their
corpses had achieved an advanced state of decomposition by September 28.
Colvin‟s proximity to the green truck shortly after McMahan and Buckels
disappeared, under suspicious circumstances in which Colvin, a convicted felon,
was in possession of a firearm and equipment that indicated that Colvin, Dobbs,
and Conner were engaging in criminal activity, tends to connect Colvin to the
murders of McMahan and Buckels. Malone, 253 S.W.3d at 257. The corroborating
11 evidence provided a link between Colvin and the murders that is sufficient for the
jury to consider all of the State‟s evidence in reaching its verdict. See id.
The jury could rationally have concluded that McMahan and Buckels died
on September 4, 1984. McMahan‟s mother saw her alive on September 3, her fresh
blood was on the green truck on September 5, and her decomposing body was
recovered on September 28. Conner placed Buckels alive at the Crossroads Inn on
September 4. Conner testified that Colvin and Dobbs left with a handcuffed
Buckels in the same truck that on the following day contained McMahan‟s fresh
blood. Buckels‟s decomposing body was recovered in the same location as
McMahan‟s, and they both died from gunshot wounds from more than one gun.
The facts support inferences that McMahan and Buckels were killed by the same
person or by persons acting in concert. That inference is strengthened by Conner‟s
testimony that on September 4 Colvin gave him a .38 Charter Arms pistol that
Colvin claimed had been used to hurt two people.
Colvin contends the kidnapping is negated by the lack of DNA or fingerprint
evidence connecting Buckels to the green truck. The State relied on Conner‟s
testimony to prove that Colvin killed Buckels in the course of kidnapping him.
According to Conner, while Buckels was handcuffed in the hotel room where
Colvin was staying, Colvin and Dobbs asked Conner to make sure Buckels did not
12 leave. Conner stated that Buckles asked Conner to let him go, but Conner said that
he could not do that. When Buckels did leave the hotel room, Colvin took him
away, handcuffed, on the floorboard of the green truck. When Colvin returned, he
stated that two people had been hurt with the .38 he had in his possession. Colvin
secreted Buckels in the hotel room, where he was not likely to be found, then
transported Buckels against his will to a location where Buckels was found shot to
death.
The jury could rationally have found that Colvin and Dobbs left with
Buckels so that they could kill him, and that McMahan‟s blood got on the truck
and her body was dumped with Buckels‟ because they killed her too. The jury
could rationally have found that Colvin participated in the commission of the
murders of Buckels and McMahan as well as the kidnapping of Buckels, and that
the murder occurred in the course of the commission of the kidnapping. Viewing
all of the evidence in the light most favorable to the verdict, a rational trier of fact
could have found the essential elements of the offenses beyond a reasonable doubt.
Jackson, 443 U.S. at 319. We overrule issues one and two.
WARRANTLES SEARCHES
In three issues, Colvin challenges the trial court‟s denial of his motion to
suppress the fruits of the September 5, 1984 warrantless search of the green truck
13 and the hotel room. He argues that the officers lacked legal authority to enter the
room or to seize items from the either the room or the vehicle and that the evidence
obtained through the unreasonable search and seizures should have been excluded
from evidence.
Standard of Review
An appellate court should afford almost total deference to a trial court‟s
determination of the historical facts that the record supports, especially when the
findings are based on an evaluation of credibility and demeanor. State v. Elias,
339 S.W.3d 667, 673 (Tex. Crim. App. 2011) (quoting State v. Ross, 32 S.W.3d
853, 856 (Tex. Crim. App. 2000)). We afford the same amount of deference to trial
courts‟ rulings on the application of law to fact questions if the resolution of those
ultimate questions turns on an evaluation of credibility and demeanor. Id.
Otherwise, we review de novo mixed questions of law and fact. Id.
We must view the evidence in the light most favorable to the trial court‟s
ruling. Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007). When the
record is silent on the reasons for the trial court‟s ruling, and no explicit findings
were requested or made, we infer the necessary findings that would support the
trial court‟s ruling if the evidence, viewed in the light most favorable to the trial
14 court‟s ruling, supports those findings. State v. Garcia-Cantu, 253 S.W.3d 236,
241 (Tex. Crim. App. 2008).
A balance between the public interest and the individual‟s right to personal
security free from arbitrary interference determines the reasonableness of a
particular search. Brown v. Texas, 443 U.S. 47, 50, 99 S. Ct. 2637, 2640, 61 L. Ed.
2d 357(1979). We consider: (1) the gravity of the public interest, (2) the degree to
which the seizure advances the public interest, and (3) the severity of the
interference with individual liberty. Id. at 51. A probable cause determination must
be made in light of the totality of the circumstances. Wiede, 214 S.W.3d at 25.
Probable cause for a search exists where the known facts and circumstances are
sufficient to warrant a person of reasonable prudence in the belief that evidence of
a crime will be found. Id. at 24.
Facts and Circumstances
Sergeant Callaway described the events leading to the arrest of Dobbs,
Colvin, and Conner, the seizure of the green truck and the blood in the bed of the
truck, and the seizure of the weapons and criminal instruments in the hotel room.
An informant provided information that a white male, approximately 28 years old,
between 5'3" to 5'4" tall, known as Buster or Duffy Colvin, had committed a
robbery at a car lot at the intersection of Aldine Westfield and Warwick two weeks
15 earlier. According to the informant, Colvin and two other white males who
participated in that offense as well as another robbery had been impersonating
police officers. The informant said these persons were staying at the Crossroads
Inn in room 237, and they were “„on crystal and heroin and very unpredictable.‟”
The informant told the officers the suspects had a gold badge, a red light, and they
were ex-cons who carried guns. Callaway confirmed with Lieutenant Baines that
there had been two or three robberies where white males identified themselves as
police officers.
The informant told Callaway that Colvin, Dobbs and Conner were “involved
in a high rate of robberies and homicides.” Callaway‟s report noted that he had
utilized the informant for criminal investigations in the past, and the informant had
previously provided reliable information. Callaway would normally check for
criminal history as a standard operating procedure, but he could not recall whether
he confirmed the suspects‟ criminal histories in this particular case. Callaway
obtained matching descriptions and composite drawings of the suspects from the
robberies. From the composite drawing, they were able to confirm with the hotel
manager that Colvin had on occasion stayed at the hotel. The manager confirmed
that the suspects were in room 237. Callaway returned to the informant, who told
Callaway that “the suspects had again committed another robbery and possible
16 homicide” and that the suspects were highly paranoid, using drugs, and were
“contemplating leaving town immediately.” Another officer confirmed the
information about the robberies and murders.
The police set up surveillance at the hotel reported to them by the informant.
They verified the room with the front desk clerk. Conner left the hotel room and
walked to the truck, where he was detained. The officers then moved up the stairs
to the hotel room and knocked on the door. Either Dobbs or Colvin opened the
door, noticed the officers, and jumped back into the room, where one of the
suspects reached for a rifle on the bed. Determined to reach the rifle first, Callaway
entered the hotel room and secured the rifle. Officers secured the scene, and found
a police light, guns, jewelry, handcuffs, and a gold badge in plain sight within the
room. They arrested the three suspects.
When Conner was detained at the green truck, Callaway noticed both dried
blood and wet blood near the tailgate in the bed of the truck. The blood was in
plain view and there was no need to get into the truck to see it. Callaway directed
Officer Heard to collect a sample of the blood before having the truck towed for
processing as a crime scene. Officer James Heard testified that he arrived after the
suspects had been detained. He absorbed the blood onto a clean white napkin, put
it in a Ziplock-type bag, and placed it in a brown envelope. Callaway obtained a
17 “„hold authorization‟” to place the suspects in the city jail while the robbery
detectives performed a follow-up investigation.
The Plain View Doctrine
For a seizure of an object to be lawful under the plain view exception (1) the
officers must lawfully be where the object can be plainly viewed, (2) the
incriminating character of the object in plain view must be immediately apparent to
the officers, and (3) the officers must have the right to access the object. Keehn v.
State, 279 S.W.3d 330, 334 (Tex. Crim. App. 2009). In this case, officers observed
the blood in the open bed of a pickup truck parked in a location accessible to the
general public. See State v. Weaver, 349 S.W.3d 521, 527 (Tex. Crim. App. 2011)
(“Police, although motivated by an investigative purpose, are as free as the general
public to enter premises „open to the public,‟ when they are open to the public.”)
(citing Maryland v. Macon, 472 U.S. 463, 470, 105 S. Ct. 2778, 86 L. Ed. 2d 370
(1985)). Additionally, Callaway‟s testimony supports a finding that the items
recovered from the hotel room were in plain view once the officers entered the
room.
Exigent Circumstances
Arguing that observing someone walk to a parked vehicle does not
objectively give rise to any exigency that justified a warrantless entry into the hotel
18 room, Colvin argues the exigent circumstances rule does not justify the warrantless
entry into the hotel room. Although searches and seizures inside a home are
presumptively unreasonable, the warrant requirement is subject to certain
reasonable exceptions. Kentucky v. King, ___ U.S. ___, 131 S. Ct. 1849, 1856, 179
L. Ed. 2d 865 (2011). The recognized exigent circumstances include “protecting
police officers from persons whom they reasonably believe to be present, armed,
and dangerous[,]” and “preventing the destruction of evidence[.]” Gutierrez v.
State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). Neither subjective bad faith
on the part of the police nor reasonable foreseeability that the actions or tactics of
the police would create exigent circumstances are considered in determining
whether the exigent circumstances rule applies. King, 131 S. Ct. at 1859. Also,
the exigent circumstances rule may apply notwithstanding the prior acquisition of
evidence sufficient to establish probable cause and the availability of time to
secure a warrant. Id. at 1860. “We have said that „[l]aw enforcement officers are
under no constitutional duty to call a halt to criminal investigation the moment they
have the minimum evidence to establish probable cause.‟” Id. at 1860-61 (quoting
Hoffa v. United States, 385 U.S. 293, 310, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966)).
“[T]he exigent circumstances rule applies when the police do not gain entry to
premises by means of an actual or threatened violation of the Fourth Amendment.”
19 Id. at 1862. Where “the police did not create the exigency by engaging or
threatening to engage in conduct that violates the Fourth Amendment, warrantless
entry will be lawful if it is justified under the exigent circumstances rule. See id. at
1858.
Colvin suggests the police were not legally justified in approaching the hotel
room without having first obtained a warrant. As King makes clear, however, an
exigency created by constitutionally permissible police conduct does not affect the
applicability of the exigent circumstances rule. Id. at 1859. Here, the informant
provided information justifying further investigation. In conducting that
investigation, the officers could, without further justification, lawfully approach
the hotel door and knock. United States v. Lewis, 476 F.3d 369, 381 (5th Cir.
2007); see also Garcia-Cantu, 253 S.W.3d at 243. Sergeant Calloway testified
that he and two other officers went to the hotel room, and he knocked on the door.
Testifying further, Calloway stated that after one of the occupants in the hotel
room opened the door in response to the knock and the two people in the room
recognized the officers as being the police, both retreated back into the room. One
of the occupants said “I give up” while the other reached for a rifle that was on the
bed. At the moment of entry, the officers were aware the occupants were armed
and the occupants were aware that the persons at the door were police. The
20 exigency was created by either Dobbs or Colvin reaching for a rifle, not by
Calloway knocking on the door. Because the officers‟ entry into the hotel room
was constitutionally permissible, the trial court did not err in denying Colvin‟s
motion to suppress evidence obtained by the immediate seizure of criminal
instruments in plain view.
The Automobile Exception
The police may lawfully search an automobile without a warrant if they have
probable cause to believe the vehicle contains evidence of a crime. Neal v. State,
256 S.W.3d 264, 282 (Tex. Crim. App. 2008) (citing Wiede, 214 S.W.3d at 24).
The officers were investigating robberies and homicides in which the actors
impersonated police officers. When Officer Heard collected the blood specimen
from the truck, the officers had corroborated the informant‟s information that
Colvin, Dobbs, and Conner were in room 237 with implements that could be used
to impersonate a police officer. The officers also had reason to believe the men
were felons in possession of a firearm. After seeing blood in the bed of the truck,
the officer could reasonably conclude there was a fair probability of finding
inculpatory evidence in the truck. Neal, 256 S.W.3d at 282; Wiede, 214 S.W.3d at
24.
21 State Exclusionary Rule
Article 38.23 of the Texas Code of Criminal Procedure, requires the
exclusion only of evidence obtained “in violation of any provisions of the
Constitution or laws of the State of Texas, or of the Constitution or laws of the
United States of America[.]” Tex. Code Crim. Proc. Ann. art. 38.23 (West 2005).
The trial court found the police did not illegally obtain the evidence at issue here.
Viewing the facts in the light most favorable to the trial court‟s ruling, and
affording deference to the necessary findings that support that ruling, we conclude
the trial court did not abuse its discretion in denying Colvin‟s motion to suppress.
We overrule issues three through five.
EXTRANEOUS OFFENSE
In two issues, Colvin contends the trial court erred in admitting evidence
from a police officer that as of September 5, 1984, Colvin was a convicted felon
and by admitting into evidence a copy of the judgment for Colvin‟s 1980
conviction for delivery of methamphetamine. The trial court excluded a second
1977 robbery by assault conviction, which included a probation that was revoked
for possession of marijuana and a pistol.
22 Standard of Review
“Because trial courts are in the best position to decide questions of
admissibility, we review a trial court‟s decision regarding the admissibility of
evidence under an abuse of discretion standard.” Rodriguez v. State, 203 S.W.3d
837, 841 (Tex. Crim. App. 2006). “This standard requires an appellate court to
uphold a trial court‟s admissibility decision when that decision is within the zone
of reasonable disagreement.” Id.
Status as Felon
“Evidence of other crimes, wrongs or acts is not admissible to prove the
character of a person in order to show action in conformity therewith.” Tex. R.
Evid. 404(b). Evidence of an extraneous offense may be admissible “for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident[.]” Id. Colvin‟s 1980
conviction established that he was a felon when he was arrested. Here, the State
offered the extraneous offense evidence as proof that Colvin was a felon in
possession of a firearm on the date of his arrest. The State used the challenged
evidence to justify the legality of Colvin‟s warrantless arrest and the search
incident to the arrest. See McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App.
2003) (“A search incident to arrest permits officers to search a defendant, or areas
23 within the defendant‟s immediate control, to prevent the concealment or
destruction of evidence.”).
Unfair Prejudice
Colvin argues the probative value of the extraneous offense evidence was
substantially outweighed by the danger of unfair prejudice. See Tex. R. Evid. 403.
The phrase “probative value” in Rule 403 “refers to the inherent probative force of
an item of evidence--that is, how strongly it serves to make more or less probable
the existence of a fact of consequence to the litigation--coupled with the
proponent‟s need for that item of evidence.” Gigliobianco v. State, 210 S.W.3d
637, 641 (Tex. Crim. App. 2006). “Evidence might be unfairly prejudicial if, for
example, it arouses the jury‟s hostility or sympathy for one side without regard to
the logical probative force of the evidence.” Id. In conducting the balancing test
required by Rule 403, the trial court considers factors including (1) how
compellingly the extraneous offense evidence serves to make a fact of consequence
more or less probable, (2) the potential the other offense has to impress the jury “in
some irrational but nevertheless indelible way[,]” (3) the time the proponent will
need to develop the evidence, and (4) the force of the proponent‟s need for this
evidence to prove a fact of consequence. Montgomery v. State, 810 S.W.2d 372,
389-90 (Tex. Crim. App. 1991). “Evidence is unfairly prejudicial only when it
24 tends to have some adverse effect upon a defendant beyond tending to prove the
fact or issue that justifies its admission into evidence.” Casey v. State, 215 S.W.3d
870, 883 (Tex. Crim. App. 2007).
Colvin argues that having the jury learn that he was a convicted felon during
the guilt or innocence phase of the trial was unfairly prejudicial, but the fact that he
was a previously convicted felon does nothing more than tend to prove the fact that
justifies its admission in the first place. See id. The trial court‟s limiting instruction
to the jury admonished that the evidence that Colvin was previously convicted of a
felony
was admitted only for the purpose of explaining, if it did, why the witness, William T. Callaway, could have detained the defendant for the offense of Unlawful Possession of A Firearm by a Felon. You cannot consider the evidence unless you find and believe beyond a reasonable doubt that . . . [Colvin], had previously been convicted of a felony.
The limiting instruction minimizes the potential for the extraneous offense to
impress the jury in some irrational but indelible way. Lane v. State, 933 S.W.2d
504, 520 (Tex. Crim. App. 1996). The trial court was within the zone of
reasonable disagreement when it concluded the probative value of the extraneous
offense was not substantially outweighed by its prejudicial impact. We overrule
issues six and seven.
25 CONFRONTATION
In two issues, Colvin contends his right of confrontation was violated when
the trial court allowed an assistant medical examiner to offer her opinions
regarding the cause of death for Buckels and McMahan, and when the trial court
allowed a fingerprint examiner to testify about fingerprint comparisons based upon
fingerprint impressions that were taken by a person who did not testify.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him[.]” U.S. CONST. amend. VI. “The Sixth
Amendment does not bar the admission of non-testimonial hearsay.” Sanchez v.
State, 354 S.W.3d 476, 485 (Tex. Crim. App. 2011) (citing Michigan v. Bryant,
___ U.S. ___, 131 S. Ct. 1143, 1153, 179 L. Ed. 2d 93 (2011)). But a testimonial
hearsay statement may be admitted into evidence only if the witness is unavailable
and the defendant had a prior opportunity to cross-examine the declarant.
Crawford v. Washington, 541 U.S. 36, 68-69, 124 S. Ct. 1354, 158 L. Ed. 2d 177
(2004). Generally, a hearsay statement is testimonial “when the surrounding
circumstances objectively indicate that the primary purpose of the interview or
interrogation is to establish or prove past events potentially relevant to later
criminal prosecution.” De La Paz v. State, 273 S.W.3d 671, 680 (Tex. Crim. App.
2008).
26 The Confrontation Clause applies to analysts‟ reports that are created for use
in a criminal proceeding. Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S. Ct.
2527, 2532 174 L. Ed. 2d 314 (2009). Consequently, the Confrontation Clause
prohibits the introduction of a testimonial forensic laboratory test report through
the in-court testimony of a scientist who neither performed nor observed the test
reported. Bullcoming v. New Mexico, __ U.S. __, 131 S. Ct. 2705, 2710, 180 L.
Ed. 2d 610 (2011). In Williams v. Illinois, the Supreme Court stated:
When an expert testifies for the prosecution in a criminal case, the defendant has the opportunity to cross-examine the expert about any statements that are offered for their truth. Out-of-court statements that are related by the expert solely for the purpose of explaining the assumptions on which that opinion rests are not offered for their truth and thus fall outside the scope of the Confrontation Clause.
Williams v. Illinois, __ U.S. __, 132 S. Ct. 2221, 2228, 183 L. Ed. 2d 89 (2012)
(plurality op.). The admission of evidence in violation of the Confrontation Clause
is constitutional error requiring reversal of the judgment of conviction unless the
reviewing court determines beyond a reasonable doubt that the error did not
contribute to the conviction or punishment. Tex. R. App. P. 44.2(a).
Autopsies
Dr. Mary Anzalone, an assistant medical examiner with the Harris County
Institution of Forensic Science, testified that she reviewed reports of two autopsies
performed by Dr. Aurelio A. Espinola on September 29, 1984. She also reviewed 27 photographs that were admitted in evidence. Based upon her review of the reports
and photographs, she formed an opinion that the individuals died as the result of
gunshot wounds. She did not analyze the tracks of the bullets, she formed no
opinion concerning the caliber of the bullets, and she could not determine the time
of death.
The Dallas Court of Appeals addressed a Confrontation Clause challenge to
a medical examiner‟s opinion testimony under similar facts in Hernandez v. State,
No. 05-11-01300-CR, 2013 WL 1282260 (Tex. App.—Dallas Mar. 6, 2013, no
pet. h.) (not designated for publication). In Hernandez, the medical examiner
testified about the conclusion he reached after reviewing the autopsy report, the
photographs, and the scene investigation history. 2013 WL 1282260, at *6. Based
on that review, the medical examiner concluded that the victim died as the result of
a gunshot wound to the back or trunk. Id. The Court held the witness provided an
explanation of his independent conclusion in the case, not an after-the-fact
explanation of the original medical examiner‟s opinion. Id. Where the jury does
not hear the testimonial hearsay on which the expert‟s opinion was based, the
medical examiner‟s testimony is not hearsay because the witness is available for
cross-examination. Hutcherson v. State, 373 S.W.3d 179, 182-83 (Tex. App.—
Amarillo 2012, pet. ref‟d).
28 Dr. Anzalone provided her independent opinion without revealing the
hearsay contained in Dr. Espinola‟s reports. The trial court did not err in admitting
her testimony. Moreover, Detective Sergeant Troy Brown testified that he was
present at the crime scene on September 28, 1984, and he attended the autopsies
performed by Dr. Espinola. Based on his experience and his personal observation,
the crime scene and the victims‟ bodies were consistent with two bodies being shot
with a firearm. He watched Dr. Espinola recover three bullets from the two bodies.
Cause of death was not a hotly contested issue in the case, and other evidence in
the record establishes that the victims died from gunshot wounds. On this record,
even if the trial court erred, we determine beyond a reasonable doubt that the
alleged error did not contribute to the conviction or punishment. Tex. R. App. P.
44.2(a). We overrule issue eight.
Fingerprints
Mark Wild, a latent print examiner with the Texas Department of Public
Safety Crime Lab, (DPS) testified that the laboratory uses a standardized
laboratory submission form. Wild is a custodian for the laboratory‟s records
maintained in the regular course of business. Wild stated that on February 24,
2011, he received a request to re-analyze and re-verify evidence that was
previously submitted in 1984. The fingerprints were taken from two unknown
29 deceased individuals. The record assigned No. PA84-307 was a white male,
contributed by the Harris County Medical Examiner. The record assigned No. 84-
PA-306 and printed October 8, 1984, was a white female, submitted by the Harris
County Medical Examiner. Wild compared the inked impressions of the unknown
subjects to known fingerprints in the DPS‟s database. The known prints were from
business records for McMahan and Buckels. Wild compared the unknown prints
with the known prints and concluded that the unknown prints were identified to the
known standards on file at the DPS for McMahan and Buckels. The trial court
admitted Wild‟s written report on the fingerprint comparisons.
Colvin complains that the State failed to produce the crime laboratory
employee, Wingo, to testify regarding how he removed and processed the victims‟
hands to secure their fingerprint impressions for identification. He argues the State
admitted testimonial hearsay statements of Wingo through Wild‟s testimony
regarding the fingerprint comparisons. Public records created for the
administration of an entity‟s affairs and not for the purpose of establishing or
proving some fact at trial are non-testimonial. Bullcoming, 131 S. Ct. at 2714 n.6
(quoting Melendez-Diaz, 557 U.S. at 324). Wild stated that he compared
fingerprints that were submitted to the crime laboratory through records kept in the
ordinary course of DPS‟s operations with known prints maintained in the DPS‟s
30 database. That statement, and Wild‟s testimony identifying the fingerprint
impressions through the identifying numbers in those records, were not offered for
the truth of the matter stated, but to identify the information that Wild compared
and prepared his report about.
Wild did not testify regarding how the fingerprint impressions contained in
the laboratory‟s files were obtained from the victims‟ hands. The statements on
the records admitted into evidence through Wild involve neither “out-of-court
statements having the primary purpose of accusing a targeted individual of
engaging in criminal conduct” nor “formalized statements such as affidavits,
depositions, prior testimony, or confessions.” Williams, 132 S. Ct. at 2242. “[I]f a
statement is not made for „the primary purpose of creating an out-of-court
substitute for trial testimony,‟ its admissibility „is the concern of state and federal
rules of evidence, not the Confrontation Clause.‟” Id. at 2243 (quoting Bryant, 131
S. Ct. at 1155.). Any hearsay embedded within Wild‟s testimony and report of his
first-hand analysis of the fingerprint impressions is non-testimonial. The actual
fingerprint impressions were not statements. See Tex. R. Evid. 801(a). We
overrule issue nine.
31 POLYGRAPH
In one issue, Colvin contends the trial court erred in failing to grant a motion
for mistrial after Dobson, in a nonresponsive answer to a question asking if he
recalled the name of the person he spoke with when he was taken from the Harris
County Jail to Montgomery County after having contacted the Montgomery
County Sheriff‟s Department through a cousin who worked as a sheriff‟s deputy,
stated, “[Bill] is my cousin. Not the individual that was doing the lie detector test.”
The trial court sustained the objection that the answer was nonresponsive and
instructed the jury to disregard the last statement made by the witness. The trial
court denied Colvin‟s motion for a mistrial. Dobson then stated that he did not
remember who took his statement.
The results of polygraph examinations are inadmissible because the tests are
unreliable. Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012). In
Roper v. State, the Court of Criminal Appeals held that the trial court‟s instruction
to disregard was effective and no reversible error resulted from an officer‟s
nonresponsive answer that “„[w]e carried him and run a polygraph test.‟” 375
S.W.2d 454, 456-57 (Tex. Crim. App. 1964). Citing Sparks v. State, 820 S.W.2d
924 (Tex. App.—Austin 1991, no pet.), Colvin argues an instruction to disregard
cannot cure the error in this case because Dobson‟s testimony was essential to
32 establish Colvin‟s actual participation in the murders and the polygraph reference
bolstered Dobson‟s claim that Colvin had confided in him. In Sparks, the
prosecutor asked the witness if he had taken a polygraph test. 820 S.W.2d at 926.
The court concluded that the prosecutor‟s question was designed to elicit the
answer given and “had no purpose but to elicit polygraph testimony.” Id. at 927-
28. Here, the State‟s question was not designed to elicit Dobson‟s response, and
Dobson‟s nonresponsive answer did not reveal the results of the polygraph test.
Under these circumstances, the trial court did not abuse its discretion by denying
the motion for a mistrial. See Roper, 375 S.W.2d at 457. We overrule issue ten.
HEARSAY
In two issues, Colvin complains that the trial court erred in admitting
hearsay testimony into evidence. Sergeant Callaway testified that he investigated
Colvin, Dobbs and Conner at the Crossroads Inn in response to information
provided by a confidential informant. Callaway stated that the confidential
informant told him that the persons of interest were armed. Colvin contends the
statement was hearsay, not subject to any exception. He also claims the trial court
commented on the weight of the evidence by citing a case by name in overruling
Colvin‟s hearsay objection.
33 “„Hearsay‟ is a statement, other than one made by the declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Tex. R. Evid. 801(d). The Court of Criminal Appeals has recognized
that testimony relating how the officer happened to be at the scene typically is not
offered for the truth of the matter stated. See Schaffer v. State, 777 S.W.2d 111,
114-15 (Tex. Crim. App. 1989). “Almost always it will be relevant for a testifying
officer to relate how she happened upon the scene of a crime or accident; thus, it is
permissible for her to testify that she was acting in response to „information
received.‟” Id. at 114.
Schaffer recognized the distinction between explaining the officer‟s presence
and conduct, and relating historical aspects of the case. Id. at 114-15. In Schaffer,
the defendant claimed he possessed peyote in a stolen van because he was working
as an informer for an Abilene police officer named Seals. Id. at 112. In rebuttal,
another officer, Segovia, testified that he had spoken with Seals that morning and
that Segovia would not ask the State to drop the charges. Id. at 113. The trial
court committed reversible error in admitting the testimony because the State
introduced that testimony “for no other reason than to inferentially prove Seals told
Segovia that appellant was not an informer.” Id. at 115.
34 “[W]here there is an inescapable conclusion that a piece of evidence is being
offered to prove statements made outside the courtroom, a party may not
circumvent the hearsay prohibition through artful questioning designed to elicit
hearsay indirectly.” Id. at 114. Sergeant Callaway did more than state that he was
acting on information received from an informant, but his statement that the
confidential informant had told him the men were armed explained the aggressive
behavior the officers exhibited at the scene. The trial court could reasonably have
found that the evidence had a purpose other than the truth of the matter stated. See
id.
Colvin argues the hearsay statement of the confidential informant that
Colvin, Dobbs and Conner were armed was extremely damaging to him. If we
consider the statement for the truth of the matter stated, the informant‟s hearsay
statement that Colvin, Dobbs and Conner were armed was cumulative of the
evidence that they had firearms with them in the hotel room. See Gant v. State,
153 S.W.3d 294, 300 (Tex. App.—Beaumont 2004, pet. ref‟d) (stating where
erroneous admission of evidence is cumulative of other properly admitted evidence
proving the same fact, the erroneous admission is harmless). Thus, the admission
of the statement would not affect Colvin‟s substantial rights. See Tex. R. App. P.
44.2(b).
35 Colvin also contends the trial court commented on the weight of the
evidence when it ruled on the hearsay objection. The court said, “There is an
exception for state of mind and also a statement offered to show probable cause or
the reason for an investigation under Sparks v State, which is 935 S.W. 2nd, 462.”
After counsel objected to a comment on the weight of the evidence, the trial court
added, “Under the statement offered to show a reason for an investigation.”
Article 38.05 of the Code of Criminal Procedure provides:
In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its bearing in the case, but shall simply decide whether or not it is admissible; nor shall he, at any stage of the proceeding previous to the return of the verdict, make any remark calculated to convey to the jury his opinion of the case.
Tex. Code Crim. Proc. Ann. art. 38.05 (West 1979). Colvin argues the trial court
conveyed to the jury its opinion that his counsel was wrong and the State‟s
argument was correct. The trial court‟s opinion regarding which party is correct on
an objection is necessarily conveyed by the ruling itself. Here, the trial court‟s
comment was directed towards the admissibility of the evidence, not its weight.
See Rosales v. State, 932 S.W.2d 530, 538 (Tex. App.—Tyler 1995, pet. ref‟d).
We overrule issues eleven and twelve.
36 IMPEACHMENT
In three issues, Colvin challenges the trial court‟s rulings regarding Colvin‟s
impeachment of Dobson concerning Dobson‟s claim that the two of them were
jailed together. Colvin complains the trial court erred by excluding Dobson‟s
Houston Police Department records, that the trial court erred by allowing a
detective to testify that his investigation confirmed Colvin and Dobbs were in jail
together, and that the trial court erred in allowing Dobson‟s out-of-court hearsay
statements as prior consistent statements.
In a written statement made on May 16, 1985, Dobson stated, “On July 27,
1984 I was arrested for misdemeanor theft and assault. I sat in the Harris County
Jail til August 1, 1984 then bonded out. While on bond a blue warrant was issued
for me, on which I was re-arrested August 28, 1984.” During the trial, Dobson
testified that he was arrested on a blue warrant for a parole violation sometime
around August 1984 and while confined in the Harris County Jail he encountered
Colvin, with whom he was already acquainted. According to Dobson, after Colvin
made incriminating statements to him, he contacted a cousin who worked for the
Montgomery County Sheriff‟s Department and explained what he had heard.
Dobson claimed at trial that due to the passage of time, he could not recall how
long it took for him to hear back from the Sheriff‟s Department, but eventually
37 they brought him to Montgomery County to make a statement. After being shown
his statement, Dobson stated he gave his statement on May 16, 1985, while he was
incarcerated.
On cross-examination, Dobson acknowledged the nine month gap between
his claimed encounter with Colvin and making the statement. Dobson stated that in
1984 he was confined on a charge of shoplifting and assault originating from
Harris County, not the Houston Police Department. He recalled telling the officers
that he picked up the case at a hardware store off Highway 59. Dobson stated that
he would not be surprised if there was no record of a conviction for an offense
committed on July 27, 1984, but that he would be surprised if the Harris County
Sheriff‟s Department stated it had no records of an arrest on July 27, 1984. When
defense counsel asked,
Would it also surprise you to know that under subpoena that I have certified documents from Harris County -- from the Houston Police Department that show they have absolutely no conviction for you or offense report for you, for any kind of theft from the hardware store where you picked up a misdemeanor theft or an assault?
Dobson replied, “I find that hard to believe, sir.”
Colvin sought to introduce Dobson‟s Houston Police Department file for
purposes of impeachment. The State objected that the records would be improper
impeachment, that they were irrelevant, and that their admission would be unfairly
38 prejudicial. When the trial court asked how the records refuted that Dobson was in
jail, defense counsel argued the proffered records refuted the reason Dobson was in
jail. Defense counsel stated he was not disputing the existence of the blue warrant
but that he intended to impeach Dobson concerning the date and the nature of the
offenses for which he had been jailed. Noting that defense counsel had already
been able to question Dobson regarding the discrepancy between his 1985 written
statement and his trial testimony, the trial court sustained the State‟s objections to
admitting the offense reports.
In questioning by defense counsel, Dobson acknowledged that he made an
oral statement to Detective Duroy on January 6, 2010. After being shown what
was described as an informal transcription of the videotaped statement, Dobson
stated that the transcription included several mistakes, including that he stated he
met Colvin in 1986. Dobson stated he met Colvin in 1976, when he sold Colvin a
car. Defense counsel questioned Dobson about discrepancies between the story he
told Detective Duroy in 2010 and his trial testimony. Dobson denied the 2010
statement was a fabrication, and stated that he “got [his] murders mixed up.”
Dobson admitted that Detective Duroy let him read the 1985 statement during the
2010 interview. Defense counsel asked whether the detective gave him the name
and location of the hotel during the interview. Over Colvin‟s hearsay objection,
39 the trial court admitted Dobson‟s 1985 written statement as a prior consistent
statement.
Over a hearsay objection, Detective Duroy testified that he investigated
whether Colvin and Dobson were in jail together around October 1984, and he was
able to confirm that they were, in fact, in jail together.
Excluded Records
The right to cross-examine “includes the right to cross-examine witnesses to
attack their general credibility or to show their possible bias, self-interest, or
motives in testifying.” Hammer v. State, 296 S.W.3d 555, 561 (Tex. Crim. App.
2009). “The trial judge retains wide latitude to impose reasonable limits on cross-
examination based upon concerns about, among other things, harassment,
prejudice, confusion of issues, and the witness‟s safety.” Virts v. State, 739 S.W.2d
25, 28 (Tex. Crim. App. 1987). Generally, issues relating to cross-examination
may be resolved by reference to the Rules of Evidence. Hammer, 296 S.W.3d at
561. The trial court “may exclude any relevant evidence if its probative value is
substantially outweighed by any or all of the countervailing factors specified in
Rule 403.” Winegarner v. State, 235 S.W.3d 787, 791 (Tex. Crim. App. 2007); see
also Tex. R. Evid. 403. Rule 403 “gives the trial court considerable latitude to
assess the courtroom dynamics, to judge the tone and tenor of the witness‟
40 testimony and its impact upon the jury, and to conduct the necessary balancing.”
Winegarner, 235 S.W.3d at 791.
Colvin contends Dobson‟s Houston Police Department arrest records would
have established that Dobson may have given false and misleading testimony when
he told the jury that Colvin confided in him. The excluded exhibit records many
arrests that occurred from 1970 through 1988. The exhibit includes a record of a
May 10, 1985 arrest for shoplifting cigarettes, a doorlock, and a chainsaw from a
Kmart, but it does not include a July 27, 1984 arrest for misdemeanor theft and
assault. The absence of such a record suggests the Houston Police Department did
not arrest Dobson on July 27, 1984, but it does not prove that no entity in Harris
County arrested Dobson on that date. The Houston Police Department‟s records
included some acts that had no relevance to Dobson‟s credibility, and others acts
that resulted in convictions Dobson had already testified about. Colvin was able to
explore the discrepancies in Dobson‟s various statements without resorting to the
records. In balancing the prejudice arising from the records against their probative
value, the trial court could have reasonably concluded that the probative value of
the impeachment evidence offered by Colvin was substantially outweighed by the
danger of unfair prejudice or confusion of the issues. Winegarner, 235 S.W.3d at
791. We overrule issue thirteen.
41 Investigation
Colvin contends the trial court erred by allowing Detective Duroy to testify
that his investigation confirmed that Colvin and Dobson were in jail at the same
time. He argues Duroy‟s statement was “backdoor hearsay” that created “an
inescapable conclusion that a piece of evidence is being offered to prove
statements made outside the courtroom[.]” Schaffer, 777 S.W.2d at 113-14.
This case more closely resembles Head v. State, where an officer testified
that in the course of his investigation of a child sexual abuse case he took
statements from the outcry witness and the child‟s mother, and that their statements
were consistent with the facts related to him by the child. 4 S.W.3d 258, 260 (Tex.
Crim. App. 1999). The officer‟s statement did not reveal to the jury the substance
of the information he obtained in his investigation. Id. “The trial court‟s ruling
that the testimony did not fall within the scope of Rule 801(d) was „within the zone
of reasonable disagreement.‟” Id. at 263 (quoting Montgomery, 810 S.W.2d at
391). We overrule issue fourteen.
Prior Consistent Statements
Colvin challenges the trial court‟s ruling admitting Dobson‟s 1985 written
statement as a prior consistent statement offered to rebut a claim of recent
fabrication. “A statement is not hearsay if . . . [t]he declarant testifies at the trial or
42 hearing and is subject to cross-examination concerning the statement, and the
statement is . . . consistent with the declarant‟s testimony and is offered to rebut an
express or implied charge against the declarant of recent fabrication or improper
influence or motive[.]” Tex. R. Evid. 801(e)(1)(B).
Colvin argues his cross-examination of Dobson did not charge recent
fabrication or improper influence or motive. We view the evidence in the light
most favorable to the trial court‟s ruling admitting Dobson‟s statement. Klein v.
State, 273 S.W.3d 297, 304 (Tex. Crim. App. 2008). Rule 801(e)(1)(B) “sets forth
a minimal foundation requirement of an implied or express charge of fabrication or
improper motive.” Hammons v. State, 239 S.W.3d 798, 804 (Tex. Crim. App.
2007) (discussing federal rule). “There is no bright line between a general
challenge to memory or credibility and a suggestion of conscious fabrication, but
the trial court should determine whether the cross-examiner‟s questions or the
tenor of that questioning would reasonably imply an intent by the witness to
fabricate.” Id. at 805.
Defense counsel cross-examined Dobson about the details of the statement
he made to Detective Duroy in 2010. Counsel asked Dobson if he recalled telling
the officers that the victims had been killed in the apartment, then asked, “And that
was total fabrication on your part, wasn‟t it?” When Dobson replied, “Got my
43 murders mixed up[,]” counsel asked Dobson, “Does that mean that you go around
reading papers . . . of murder cases, and then you‟re snitching on people?”
Counsel also asked Dobson if Detective Duroy let him read his 1985 statement
during the 2010 interview. Defense counsel questioned Dobson about details in his
2010 statement, then asked, “And then you start remembering things once you see
the statement, and he gives you all this information beforehand. You had
absolutely no independent recollection of it until you saw that statement, right?”
At the time the State proffered Dobson‟s 1985 statement as a prior consistent
statement, the trial court had before it sufficient information from which it could
conclude that defense counsel‟s questioning of Dobson reasonably implied an
intent by the witness to fabricate. See id. The trial court‟s ruling, being within the
zone of reasonable disagreement, was not an abuse of discretion. We overrule
issue fifteen.
RECORDED RECOLLECTION
In his final two issues, Colvin challenges the admission of an offense report
purportedly written by a sheriff‟s deputy who lacked independent recollection of a
1984 offense report that bears his name. Colvin contends the offense report is
inadmissible hearsay. See Tex. R. Evid. 801(d), 802. Colvin also contends the
44 trial court erred in admitting the physical evidence submission form that bears the
officer‟s name and signature.
George Tones, a retired Montgomery County deputy with memory issues
testified that he was a crime scene investigator in 1984 but he had no independent
recollection of his work on this case. He could not recall preparing the offense
report but acknowledged, “My name is typed on it.” The State offered the offense
report as a recorded recollection. See Tex. R. Evid. 803(5). Over Colvin‟s hearsay
objection, the prosecutor read the contents of the offense report in front of the jury.
The report described how Tones obtained fingerprints from the hands of the
unknown male and female in the morgue and transported the fingerprints and the
hands to the DPS laboratory in Austin. Tones stated that he believed he generated
the submission form in the ordinary course of his duties as a crime scene
investigator.
“A memorandum or record concerning a matter about which a witness once
had personal knowledge but now has insufficient recollection to enable the witness
to testify fully and accurately,” is not excluded by the hearsay rule if it is “shown
to have been made or adopted by the witness when the matter was fresh in the
witness‟ memory and to reflect that knowledge correctly, unless the circumstances
of preparation cast doubt on the document‟s trustworthiness.” Tex. R. Evid.
45 803(5). On appeal, the State concedes it failed to establish the predicate for the
admission of a recorded recollection because Tones failed to vouch for the
accuracy of the offense report. See Johnson v. State, 967 S.W.2d 410, 416 (Tex.
Crim. App. 1998).
Although it concedes the trial court erred by allowing the offense report to
be read into the record as a recorded recollection, the State argues the error did not
affect a substantial right of the defendant. Tex. R. App. P. 44.2(b). The State used
the offense report to authenticate the physical evidence submission form used to
establish the chain of custody regarding the victims‟ hands and fingerprints. The
State offered the physical evidence submission form as a public record over
Colvin‟s objection that the document was an offense report. See Tex. R. Evid.
803(8).
Rule 803(8) does not necessarily make all law enforcement reports
inadmissible. See Cole v. State, 839 S.W.2d 798, 807 n.5 (Tex. Crim. App. 1992)
(op. on reh‟g). Physical evidence requires sufficient authentication to support a
finding that the exhibit in issue is what the proponent claims it to be. See Tex. R.
Evid. 901(a). Where the State proves the beginning and end of the chain of
custody, absent evidence of tampering, questions concerning care and custody of
46 the object go to the weight to be attached to the evidence and not to its
admissibility. See Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim. App. 1997).
Tones acknowledged the signed submission form appeared to have been generated
by him and there is no evidence in the record to suggest otherwise. Detective
Sergeant Troy Brown testified that he attended the autopsies performed by Dr.
Espinola and observed the attempt to recover fingerprints. Wild, a DPS Crime Lab
latent print examiner, compared the fingerprint impressions to the known
fingerprints of Buckels and McMahan. McMahan‟s identity was also established
through DNA analysis.
We hold the trial court had the discretion to determine the sufficiency of the
evidentiary predicate for the physical evidence submission form. See Llamas v.
State, 270 S.W.3d 274, 282 (Tex. App.—Amarillo 2008, no pet.). The offense
report served only to buttress the chain of custody of items of physical evidence
used to establish the identity of the victims. Colvin does not contend the evidence
was tampered with, and the identity of one of the victims was corroborated by
other evidence. We hold any error did not affect Colvin‟s substantial rights. See
Tex. R. App. P. 44.2(b). We overrule issues sixteen and seventeen and affirm the
judgment.
47 AFFIRMED.
______________________________ CHARLES KREGER Justice
Submitted on November 26, 2012 Opinion Delivered June 12, 2013 Do Not Publish
Before McKeithen, C.J., Gaultney and Kreger, JJ.
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