Tony Escobar v. State

Opinion

Opinion issued October 29, 2015.

In The

Court of Appeals For The

First District of Texas ———————————— NO. 01-14-00593-CR ——————————— TONY ESCOBAR, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court Harris County, Texas Trial Court Case No. 1344348

MEMORANDUM OPINION

A jury convicted appellant, Tony Escobar, of capital murder, and, because

the State did not seek the death penalty, the trial court assessed punishment at

confinement for life. We affirm. BACKGROUND

On the evening of December 20, 2011, Russell Lopez was at home taking

care of his seven-year-old son, Caden, his six-year old niece, Bailey, and his nine-

month-old daughter, Julianne. Lopez’s wife, Marie, and his cousin, Shonte Mabe,

were at work together. When they got off work shortly after 9:00 that night, Marie

tried calling Lopez twice, but was unable to reach him. Mabe gave Marie a ride

home. When they pulled up to Marie’s house, they noticed that Lopez’s black

Tahoe was not in the driveway.

Upon entering the home, they found that their house had been ransacked and

Marie’s nine-month-old daughter was sitting on the couch unattended. Lopez was

found lying on the bedroom floor covered in blood. While Mabe called 911, Marie

went to Caden’s bedroom to check on the children. Marie found the children in

Caden’s bedroom. Both Caden and Bailey were unharmed, but their hands and feet

had been bound together with Julianne’s baby clothes. While Marie was in the

children’s bedroom, the 911 dispatch operator instructed Mabe to confirm that

Lopez was not breathing. Lopez’s face was so distorted that he was

unrecognizable. Due to the severe nature of the injuries to Lopez’s face, Mabe was

unable to perform CPR.

Paramedics arrived and declared Lopez dead on the scene. A sword was

laying across his left chest and arm. There was a large concentration of blood on

2 the floor of the dining room area, as well as bloody trails on the carpet leading to

Lopez’s body, indicating that his body had been dragged from the dining room to

the bedroom. Various items had been removed from the home, including a

television, a game system, jewelry, and Lopez’s vehicle.

On December 22, Lopez’s missing Tahoe was found partially submerged in

a large body of water within a wooded area near Katy. The part of the vehicle that

had not been submerged had been burned. Inside the vehicle, crime scene

investigators with the Harris County Sheriff’s Office recovered a cell phone, a

shotgun shell, and a lighter.

Sergeant Craig Clopton spoke with people in the neighborhood and

developed two potential suspects, Amber Thornton and Joseph Facundo. On

December 28th, Clopton interviewed Thornton, who consented voluntarily to the

interview, at the homicide department. Based on information he received from

Thornton, Clopton also developed appellant as a suspect.

Clopton produced photo arrays containing pictures of the three suspects and

showed them to Caden. Caden identified Thornton, Facundo, and appellant.

Clopton then sought capital murder charges against appellant, and an arrest warrant

was issued for his arrest.

On December 30th, appellant and Facundo were apprehended in Laredo,

where they were attempting to cross the border into Mexico.

3 A. Appellant’s Trial

At appellant’s trial, Thornton testified as a witness for the State. According

to Thornton, Lopez was the neighborhood drug dealer. On the evening of

December 20, 2011, Thornton went to the vacant house next door to her home to

get high. She found that Facundo and appellant were already at the vacant house

smoking marihuana. Thornton testified that they spent the next 20 to 30 minutes

discussing a plan to rob Lopez to get money and drugs. They planned to enter

Lopez’s home under the pretense of selling him a laptop, which appellant had

brought to the vacant house, in exchange for three bags of cocaine worth $20.00

each. Once inside, Facundo would hit Lopez over the head with a hammer,

appellant would tie up the children, and they would steal Lopez’s property and his

Tahoe.

Facundo called Lopez and arranged for the “sale” of the laptop. Then they

walked to Lopez’s house, and he let them inside. Facundo was carrying the

hammer in his pocket. Thorton testified that Lopez was sitting at the dining room

table feeding his infant daughter. Caden and Bailey were also present, but Lopez

told them to go to the back room. Appellant set the laptop on the table and grabbed

the cocaine. Then Facundo pulled the hammer out of his pocket and struck Lopez

in the back of the head. Lopez fell to the ground, and Facundo continued to

repeatedly strike him with the hammer.

4 Thornton testified that the baby began crying, so she picked her up from the

highchair and held her while appellant went to Caden’s room and tied up the other

children. Facundo started grabbing televisions, guns, laptops, drugs, and money.

Appellant and Facundo loaded the stolen items into the appellant’s Tahoe, while

Thornton held the baby. Appellant and Facundo grabbed Lopez by the hands and

dragged his body into the bedroom. Then, Facundo retrieved an ornamental sword

from Lopez’s bedroom. Facundo and appellant were standing over Lopez’s body,

and Facundo was about to stab Lopez with the sword when he told Thornton to

look the other way. Thornton testified that she did not watch what happened in the

bedroom; instead, she walked over to the couch and set the baby down.

Then they drove the Tahoe to the vacant house and hid the stolen property in

the attic. Facundo told Thornton that he and appellant discarded the Tahoe at a lake

known locally as “The Cliffs.” Thornton testified that she sold some of the jewelry

that she had stolen from Lopez’s house. Thornton, Facundo, and appellant also

took a safe stolen from the Lopez’s home to a neighborhood friend named David

Tillman. Tillman managed to open the safe, but they only found legal papers

inside. Tillman later provided the stolen safe to Sergeant Clopton.

Roger Milton, Jr., Assistant Medical Examiner for Harris County, testified

regarding Lopez’s autopsy results. Milton explained that Lopez had extensive blunt

and sharp force injuries primarily of his head and neck region and some on the

5 front of his chest. Milton also observed the presence of two narrow objects

penetrating into the soft tissue in what he referred to as potentially chop injuries.

The injuries to complainant’s face were extensive and very destructive with

fractures. Milton also observed perforating wounds on Lopez’s body, including a

stab wound to the right upper chest that went through his lung. Milton testified that

a sword shown to him (State’s exhibit No. 94) was capable of inflicting the type of

injuries sustained by the complainant. He indicated that there was very little

hemorrhage along the wound track indicating that the injury was consistent with

either a peri-mortem (around the time of death) or even postmortem injury. Milton

opined that the complainant’s cause of death was multiple blunt and sharp force

injuries of the head, neck, and chest. He determined that the manner of death was

homicide.

Lopez’s son, Caden, testified that on the evening of December 20, 2011, he

saw his father sitting at the kitchen table feeding his sister Julianne, and there were

two men standing behind him. His father told him to go back to his room.

Approximately 10 minutes later, a man entered his room carrying Julianne’s baby

clothes and said “we’re going to play cops and robbers.” The man used the baby

clothes to tie his legs together and to tie his hands behind his back. The man also

tied up his cousin, Bailey. Then the man said “If I hear a noise, I’m going to bring

a dog in here.” After the man left, Caden cracked the bedroom door open and saw

6 the two men and woman rummaging around in the kitchen. Caden estimated that

he waited approximately 30 minutes before his mother came home from work and

found him.

The following day, Caden was taken to the Children’s Assessment Center to

be interviewed. Sergeant Clopton showed him pictures and asked him to identify

the people that were in his home that night. Caden circled appellant’s photograph

and identified him as the man that tied him up. Caden also made an in-court

identification of appellant.

The jury found appellant guilty of capital murder as charged in the

indictment.

B. Issues on Appeal

Appellant brings the following twelve issues on appeal:

1. The evidence is insufficient as a matter of law to sustain the jury’s verdict finding the appellant guilty of capital murder beyond a reasonable doubt.

2. The trial court erred when it denied appellant’s motion for instructed verdict of not guilty at the end of the State’s case.

3. The trial court erred when it admitted the 911 tape into evidence over appellant’s objection.

4. The trial court erred when it admitted numerous autopsy photographs into evidence over appellant’s objections.

5. The trial court erred when it limited appellant’s cross examination of Sergeant Clopton regarding influences and motives to fabricate a story.

7 6. The trial court erred when it refused to allow appellant to establish what questions Sergeant Clopton asked Amber Thornton during her interview with him on December 28, 2011.

7. The trial court erred when it refused to allow appellant to introduce Amber Thornton’s statement to Sergeant Clopton in evidence pursuant to rule 801(E)(1)(E) of the Texas Rules of Evidence.

8. The trial court erred when it refused to admit Amber Thornton’s statement to Sergeant Clopton under the Rule of Optional Completeness.

9. The trial court erred when it prevented appellant from cross examining Amber Thornton about her habit and routine lying to law enforcement to avoid responsibility for her actions.

10. The trial court erred when it refused appellant’s requested jury instruction on necessity.

11. The trial court erred when it refused appellant’s request for a jury instruction on the lesser offense of theft.

12. The trial court erred when it commented on the weight of the evidence in the instructions given to the jury concerning the law of conspiracy.

SUFFICIENCY OF THE EVIDENCE

In his first two points, appellant challenges the sufficiency of the evidence to

support his capital murder conviction.

A. Standard of Review and Applicable Law

A person commits capital murder “if the person commits murder as defined

under Section 19.02 (b)(1)” i.e., intentionally or knowingly causing the death of an

individual, and “the person intentionally commits the murder in the course of

committing or attempting to commit . . . robbery.” TEX. PENAL CODE ANN. § 19.03

8 (West 2011). A defendant who did not actually cause the death of the victim can

nonetheless be convicted of capital murder under section 7.02 of the Texas Penal

Code, which provides:

(a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

(2) acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense; or

(3) having a legal duty to prevent commission of the offense and acting with intent to promote or assist its commission, he fails to make a reasonable effort to prevent commission of the offense.

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

TEX. PENAL CODE ANN. § 7.02 (West 2011).

When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder 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, 2789 (1979);

9 Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence).

The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the

facts and reject another, and it may reject any part of a witness’s testimony. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson

v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(stating jury can choose to disbelieve witness even when witness’s testimony is

uncontradicted). We may not re-evaluate the weight and credibility of the evidence

or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d

742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the

jury’s determinations of credibility. See Lancon v. State, 253 S.W.3d 699, 705

(Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of

the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record

supports conflicting inferences, we presume that the factfinder resolved the

conflicts in favor of the prosecution and therefore defer to that determination.”).

10 B. Analysis

Appellant claims that the evidence is insufficient to corroborate the

accomplice-witness testimony as required by Article 38.14 of the Code of Criminal

Procedure, which provides 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.” TEX. CODE CRIM. PROC. ANN. art.

38.14 (West 2013). To measure the sufficiency of non-accomplice evidence, the

reviewing court disregards the accomplice-witness testimony and then examines

the remaining portions of the record to see whether there is any evidence that tends

to connect the accused with the commission of the crime. Castillo v. State, 221

S.W.3d 689, 691 (Tex. Crim. App. 2007). “The corroborating evidence need not be

sufficient by itself to establish guilt; there simply needs to be ‘other’ evidence

‘tending to connect’ the defendant to the offense.” Id. The mere presence of the

accused in the company of the accomplice during the commission of the offense is

alone insufficient to corroborate the accomplice-witness testimony; however, the

presence of the accused combined with other suspicious circumstances may tend to

connect the accused to the offense. Dowthitt v. State, 931 S.W.2d 244, 249 (Tex.

Crim. App. 1996). “Even apparently insignificant incriminating circumstances may

sometimes afford satisfactory evidence of corroboration.” Id.

11 The record contains sufficient non-accomplice evidence connecting

appellant to the commission of the offense. Appellant was arrested while

attempting to flee with Facundo to the Mexico. Appellant’s flight raises an

inference of guilt. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.

1994). Once arrested, appellant made several incriminating statements to the

police. He admitted that he was present during the offense, and that he tied up the

children. Appellant also admitted that he stole knives and a television set from the

complainant’s house and hid the stolen property in the vacant house. Appellant

admitted that he drove the complainant’s car to “the Cliffs” and pushed the car into

the water. And, appellant told police that he stuffed his shirt in the gas tank and set

the car on fire. Appellant’s admissions were consistent with non-accomplice

testimony that the complainant’s vehicle was found partially submerged and the

rear end of the vehicle had been burned. Appellant also admitted that he received

approximately $1,000 as his share of the profits.

Caden’s testimony also places appellant at the scene and establishes that

appellant bound his hands and feet together and threatened him if he made any

noise.

Finally, a DNA mixture of two or more individuals was obtained from the

scabbard of the sword used to stab the complainant, and appellant could not be

12 excluded as a possible contributor to that mixture. This non-accomplice evidence is

sufficient to corroborate the accomplice-witness testimony.

Appellant also argues that the evidence was insufficient to support his

conviction for Capital Murder individually or as a party according to section

7.02(a)(2) of the Penal Code. TEX. PENAL CODE § 7.02(a)(2) (West 2011) (“A

person is criminally responsible for an offense committed by the conduct of

another if acting with intent to promote or assist the commission of the offense, he

solicits, encourages, directs, aids, or attempts to aid the other person to commit the

offense.”). He contends he did not intend to promote or assist Joseph Facundo

and/or Amber Thornton in the murder of the Complainant.

Appellant further argues that he could not have anticipated that Facundo

would murder Russell Lopez. Appellant argues there is no evidence in the record

to establish that appellant, (1) conspired to commit a felony offense with either

Joseph Facundo and/or Amber Thornton or (2) that he should have anticipated

Lopez’s murder as a consequence of proceeding with Facundo and Thornton.

Article 38.14 of the Texas Code of Criminal Procedure provides 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.

13 In response, the State contends that the evidence “is sufficient to support

appellant’s conviction as a party to the offense.” It argues that appellant’s

“participation in the events occurring before, during, and after the commission of

the offense clearly reflects a common understanding and design to murder and rob

the complainant.” It points to testimony by Amber Thornton asserting that she had

formed a prior agreement with appellant and Joseph Facundo to rob and murder the

complainant.

The State also argues that appellant did not attempt to leave the scene or

contact police when Facundo began striking complainant with a hammer. Instead,

appellant went to the children’s bedroom and bound the children’s hands and feet

together. Then, he helped the co-defendant drag the complainant’s body into the

bedroom, rummaged through the complainant’s house, stole from the deceased

complainant, received an equal share of the profits, and attempted to flee to

Mexico with Facundo. Accordingly, the State argues “a rational trier of fact could

have concluded beyond a reasonable doubt that appellant was a willing participant

in a conspiracy to rob the complainant.” We agree.

To convict appellant for capital murder as a co-conspirator, the State had to

prove (1) appellant was a party to a conspiracy to commit aggravated robbery, (2)

capital murder was committed by appellant or someone acting with him, (3) the

capital murder was committed in furtherance of the conspiracy to commit

14 aggravated robbery, and (4) appellant should have anticipated that capital murder

could occur as a result of the aggravated robbery. E.g., TEX. PENAL CODE ANN. §

7.02(b); Hartsfield v. State, 305 S.W.3d 859, 869 (Tex. App.—Texarkana 2010,

pet. ref’d). The State “does not have to prove that the accused intended to shoot or

kill the victim or intended that the victim be shot, as long as the evidence

established he conspired to commit the robbery and that he ‘should have’

anticipated the murder as a result of carrying out the conspiracy to commit the

robbery.” Davis v. State, 276 S.W.3d 491, 495 (Tex. App.—Waco 2008, pet.

ref’d).

1. Evidence of conspiracy to commit aggravated robbery

The Texas Penal Code defines robbery as: in the course of committing theft,

and with the intent to obtain or maintain control of the property, a defendant

intentionaly, knowingly or recklessly causes bodily injury to another or

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

injury or death. TEX. PENAL CODE ANN. § 29.02(a) (West 2011); Sholars v. State,

312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2009, pet. ref’d).

Aggravated robbery is robbery that causes serious bodily injury to another, or is

committed while using or exhibiting a deadly weapon. TEX. PENAL CODE ANN. §

29.03 (West 2011).

15 The jury was instructed that conspiracy means “an agreement between two

or more persons with intent that they, or one or more of them, engage in conduct

that would constitute the offense.” TEX. PENAL CODE ANN. § 15.02(a) (West 2011);

Hooper v. State, 255 S.W.3d 262, 265-66 (Tex. App.—Waco 2008, pet. ref’d). The

court may look to events occurring before, during, and after the commission of the

offense as evidenced of criminal responsibility under the law of parties. Ervin v.

State, 333 S.W.3d 187, 201 (Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)

(“Since an agreement between parties to act together in common design can

seldom be proven by words, the State often must rely on the actions of the parties,

shown by direct or circumstantial evidence, to establish an understanding or a

common design to commit the offense.”).

There is evidence of such an agreement among appellant, Amber Thornton,

and Joseph Facundo to commit aggravated robbery in this case. The State

introduced testimony from Amber Thornton that she had formed a prior agreement

with appellant and Joseph Facundo to rob and murder the complainant. Thornton

testified that she met with appellant and Facundo at a vacant house and spent

roughly half an hour concocting a plan to gain entry to the complainant’s home

under the pretense of selling him a laptop. Once inside, Facundo would strike the

complainant in the head with a hammer, appellant would tie up the children, and

16 they would steal the complainant’s property. Thornton also testified that they also

had a plan to sell the stolen property afterwards.

Thornton’s testimony establishes that appellant contributed to the execution

of their plan in several ways: (1) he accompanied Thornton and Facundo to the

Lopez’s house; (2) he provided the laptop and sold it to Lopez for cocaine; (3) he

tied up the children when Facundo began striking Lopez with the hammer; (4) he

helped Facundo drag Lopez’s body into the bedroom; (5) he loaded Lopez’s

property in to the Tahoe; (6) he helped transport the stolen property to the attic of a

vacant house; and (7) he and Thornton later retrieved a stolen safe from the attic

and took it to David Tillman who opened the safe.

2. Evidence that capital murder was committed by a co-conspirator

The State was required to prove that the capital murder was committed by

appellant or someone acting with him. Appellant stated that Joseph Facundo killed

Russell Lopez, and does not dispute that on appeal.

3. Evidence that Russell Lopez was killed in furtherance of conspiracy

Testimony from Amber Thornton stated that Facundo, appellant, and she

made an agreement prior to going to Lopez’s house, to rob and murder Lopez.

Thornton also testified that the plan was for appellant to bring a laptop to sell, and

for Facundo to hit Lopez with a hammer and then rob the house. Appellant’s

actions were consistent with Thornton’s account of a planned robbery. There is no

17 evidence that appellant attempted to leave the scene or contact police. Instead,

appellant immediately went to Caden’s bedroom and bound the children’s hands

and feet together. Then, he helped his co-defendant drag Lopez’s body into the

bedroom, rummaged through Lopez’s house, stole from the deceased Lopez,

received an equal share of the profits, and attempted to flee to Mexico with

Facundo. There is sufficient evidence for the jury to conclude that Lopez was

killed in furtherance of the conspiracy to commit aggravated robbery.

4. Evidence that appellant should have anticipated capital murder

Testimony from Thornton showed that appellant was aware that Facundo

intended to strike the complainant in the head with a hammer that he was carrying

in his pocket. It is reasonably foreseeable that a person might die as a result of

being struck in the head with a hammer. Furthermore, the fact that appellant

continued to remain at the scene and did not protest when the complainant was

repeatedly struck with a hammer and stabbed with a sword shows his acquiescence

in the actions that caused Lopez’s death. Viewing the evidence in the light most

favorable to the jury’s verdict, a rational trier of fact could have found beyond a

reasonable doubt that appellant was criminally responsible as a party to the capital

murder.

We overrule points of error one and two.

18 RULE 401 & 403 OBJECTIONS

In point of error three, appellant claims that the trial court erred in admitting

the 911 tape. In point of error four, appellant contends that the trial court erred in

admitting numerous autopsy photographs.

Evidence is relevant if (1) it has any tendency to make a fact more or less

probable that it would be without the evidence; and (2) the fact is of consequence

in determining the action. TEX. R. APP. P. 401. Although relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice, confusion of the issues, misleading the jury, undue delay, or

needless presentation of cumulative evidence. TEX. R. EVID. 403.

An abuse of discretion standard is applied to a trial court’s decision to admit

or exclude evidence. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App.

2010). Likewise, in reviewing the trial court’s determination of the probative and

prejudicial value of evidence under rule 403, we will reverse the trial court only

upon a showing of a clear abuse of discretion. Rachal v. State, 917 S.W.2d 799,

808 (Tex. Crim. App. 1996). But, reviewing for abuse of discretion in this context

requires more than deciding that the trial judge did in fact conduct the required

balancing between probative and prejudicial values; the trial court’s determination

must be reasonable in view of all relevant facts. Id. Accordingly, if the record

19 reveals that the probative value of the tendered evidence is substantially

outweighed by unfair prejudice, then the trial court acted irrationally in admitting it

and abused discretion. Id.

B. Analysis

1. 911 Tape

Appellant argues that the 911 tape was not relevant because the State had

ample other evidence concerning the discovery of the body and the police coming

out to the scene, and that, in light of that other evidence, the evidence contained on

the 911 tape was redundant and irrelevant.

911 tapes are generally admissible under Rules 401 and 403, even if not

necessary to establish a material fact, because they provide a framework within

which the State’s evidence may be developed. Webb v. State, 760 S.W.2d 263, 276

(Tex. Crim. App. 1988) (holding 911 tape admissible over rule 403 objection, even

though not establishing material facts, because tape provides framework for

developing evidence); Sierra v. State, 157 S.W.3d 52, 63 (Tex. App.—Fort Worth

2004, aff’d, 218 S.W.3d 85 (Tex. Crim. App. 2007) (911 tape admissible over rule

403 objection); Munoz v. State, 932 S.W.2d 242, 244 (Tex. App.—Texarkana

1996, no pet.); Brooks v. State, 833 S.W.2d 302, 304 (Tex. App.—Fort Worth

1992, pet. ref’d).

20 In Yi v. State, No. 01-05-01147-CR, 2007 WL 2052064, at *4 (Tex. App.—

Houston [1st Dist.] July 19, 2007, no pet.) (mem. op.), this Court concluded that

the trial court did not abuse its discretion in admitting the 911 tape of 11-year-old

boy crying and praying as he discovered his mother’s blood-soaked body because

the tape offered a framework for the State’s case.

Similarly, the 911 tape in this case was made immediately after Amanda

Mabe and Marie Lopez discovered Russell Lopez’s body and corroborates their

testimony. The tape is relevant because it provides “a framework” for the State’s

evidence, and its relevance is not “substantially outweighed” by the danger of

unfair prejudice toward the defendant. Accordingly, the trial court did not abuse its

discretion in admitting the 911 tape over appellant’s 401 and 403 objections.

We overrule point of error three.

2. Autopsy Photographs

Appellant also argues that the trial court abused its discretion in admitting

autopsy photographs into evidence. Appellant contends that State’s exhibits 79-93

are irrelevant because the cause of complainant’s death was not a contested issue at

trial. Appellant also argues that the probative value of the photographs was

substantially outweighed by the danger of unfair prejudice.

The trial court’s decision to admit photographs into evidence is reviewed for

an abuse of discretion. Penry v. State, 903 S.W. 2d 715, 751 (Tex. Crim. App.

21 1995). A photograph is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” See TEX. R. EVID. 401. “The

identity of the victim and the manner and means of death are certainly facts that are

of consequence to the determination of the action.” Penry, 903 S.W.2d at 751

(citing Long v. State, 823 S.W.2d 259, 271 n.18 (Tex. Crim. App. 1991)). Thus,

autopsy photographs that are helpful in demonstrating the cause of death are

admissible even if the cause of death is not contested. See Flores v. State, 299

S.W.3d 843, 858 (Tex. App.—El Paso 2009, pet. ref’d) (holding that photographic

evidence was admissible even if it merely corroborated other evidence). Overall,

the photograph must be helpful to the jury: “If there are elements of a photograph

that are genuinely helpful to the jury in making its decision, the photograph is

inadmissible only if the emotional and prejudicial aspects substantially outweigh

the helpful aspects.” Erazo v. State, 144 S.W.3d 487, 491–92 (Tex. Crim. App.

2004).

Here, the indictment charged appellant with causing the death of Lopez by

striking him with a hammer or stabbing him with a sword. The 15 autopsy

photographs introduced at trial were selected by the prosecutor and the medical

examiner from more than 250 photographs taken of the complainant’s injuries. The

medical examiner testified that the autopsy photographs of Lopez’s injuries were

22 relevant to show the cause of death. The photographic evidence of the

complainant’s injuries was relevant because it supported the State’s theory that

Lopez was struck in the back of the head with a hammer and suffered repeated

blows from a hammer and a sword.

Appellant further contends that, even if the photographs are relevant, they

are overly prejudicial. Under the Rule of Evidence 403, the trial court must

determine whether the probative value of the photographic evidence is

substantially outweighed by the danger of unfair prejudice. TEX R. EVID. 403. To

make this determination, the court assesses various factors such as whether the

photographs are gruesome, their detail, their size, whether they are black and white

or color photographs, whether the body is naked or clothed, and whether the body

has been altered in some way that enhances the gruesomeness of the photograph.

Flores v. State, 299 S.W.3d 843, 858 (Tex. App.—El Paso 2009, pet. ref’d).

Although the autopsy photographs are gruesome, the trial court admitted only

those photographs that the medical examiner testified were probative of the manner

and method of the Lopez’s death. Accordingly, appellant has not demonstrated that

the trial court abused its discretion by admitting the photographic evidence.

We overrule point of error four.

23 CROSS EXAMINATION

In the fifth point of error, appellant claims that the trial court erred by

limiting his cross-examination of Sergeant Clopton, which was designed to cast

doubt upon the anticipated testimony of the State’s principal witness, Amber

Thornton. The prohibited line of questioning included the following:

[Defense Counsel]: As an experienced homicide investigator would you agree that taking capital murder off the table and offering aggravated robbery and possible probation could influence or be a motive to fabricate a story?

[Prosecutor]: Objection. Speculation and relevance.

[Defense Counsel]: I think he’s qualified as an expert to testify as an experienced homicide investigator.

[Prosecutor]: Speculation as to what motivation it might have to another person.

[Trial Court]: Sustained.

We review a trial court’s decision to exclude evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial

court abuses its discretion only if its decision is “so clearly wrong as to lie outside

the zone within which reasonable people might disagree.” Taylor v. State, 268

S.W.3d 571, 579 (Tex. Crim. App. 2008). A trial court does not abuse its discretion

if any evidence supports its decision. See Osbourn v. State, 92 S.W.3d 531, 538

(Tex. Crim. App. 2002). We will uphold the trial court’s evidentiary ruling if it 24 was correct on any theory of law applicable to the case. See De La Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

The Sixth Amendment right to confront witnesses “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). Generally, the Texas Rules of Evidence permit a

defendant to “cross-examine a witness for his purported bias, interest, and motive

without undue limitation or arbitrary prohibition.” Id. at 563; see also TEX. R.

EVID. 613(b) (providing for impeachment of witness by evidence of alleged bias or

interest in favor or against party); Billodeau v. State, 277 S.W.3d 34, 42–43 (Tex.

Crim. App. 2009). (“The possible animus, motive, or ill will of a prosecution

witness who testified against the defendant is never a collateral or irrelevant

inquiry, and the defendant is entitled, subject to reasonable restrictions, to show

any relevant fact that might tend to establish ill feeling, bias, motive, interest, or

animus on the part of any witness testifying against him.”); Carpenter v. State, 979

S.W.2d 633, 634 (Tex. Crim. App. 1998) (“Exposing a witness’ motivation to

testify for or against the accused or the State is a proper and important purpose of

cross-examination.”) The scope of permissible cross-examination is “necessarily

broad.” Carroll v. State, 916 S.W.2d 494, 497 (Tex. Crim. App. 1996). “A

25 defendant is entitled to pursue all avenues of cross-examination reasonably

calculated to expose a motive, bias, or interest for the witness to testify.” Id.

This broad scope of cross-examination does not mean, however, “that a

defendant can explore every possible line of inquiry.” Smith v. State, 352 S.W.3d

55, 64 (Tex. App.—–Fort Worth 2011, no pet.) “[T]rial judges retain wide latitude

. . . to impose reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the issues, the

witness’ safety, or interrogation that is repetitive or only marginally relevant.”

Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986); see

also Hammer, 296 S.W.3d at 561 (“This right is not unqualified, however, the trial

judge has wide discretion in limiting the scope and extent of cross-examination.”).

Even if we were to agree that the trial court erred in excluding Clopton’s

testimony about the effect of a plea deal on the witness, we would nonetheless

conclude that the error was harmless. The reviewing court must disregard any non-

constitutional error which does not affect appellant’s substantial rights. See TEX. R.

APP. P. 44.2(b). Substantial rights are not affected by the erroneous exclusion of

evidence if, after considering the record as a whole, the reviewing court “has fair

assurance that the error did not influence the jury, or had but a slight effect.”

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

26 Appellant claims that the prohibited line of cross-examination was necessary

to undermine Thornton’s credibility by showing that she had a motivation to lie in

exchange for a reduced charge. However, the State presented testimony from

Thornton acknowledging that she had initially been charged with capital murder,

which posed a potential penalty of death or life without the possibility of parole.

Thornton admitted that the original charge of capital murder was later reduced to a

charge of aggravated robbery in exchange for her testimony against appellant and

Facundo. On cross-examination, Thornton further testified that she had pleaded

guilty to aggravated robbery, making her potentially eligible to receive probation

after testifying against both co-defendants. Thus, the jury could have believed that

the reduced charge could affect Thornton’s credibility, even without expert opinion

testimony from Sergeant Clopton.

We overrule point of error five.

EXCLUSION OF EVIDENCE

In three points of error—six, seven, and eight—appellant complains that the

trial court erroneously excluded evidence of the questions Sergeant Clopton asked

Amber Thornton during his initial interrogation of her on December 28, 2011.

Appellant also argues that Thornton’s statement should have been admitted under

the Rule of Evidence 801(e)(2)(E) as a statement by a co-conspirator during the

27 course and in furtherance of the conspiracy and under the Rule of Optional

Completeness.

A. Standard of Review

Rule 801(e)(2)(E) of the Texas Rules of Evidence allows the introduction of

a conspirator’s statement if made during and in furtherance of the conspiracy. The

rationale for this rule is based on the concept that “a conspiracy is a common

undertaking where the conspirators are all agents of each other and where the acts

and statements of one can be attributed to all.” Byrd v. State, 187 S.W.3d 436, 440

(Tex. Crim. App. 2005) (quoting Bourjaily v. United States, 483 U.S. 171, 188–94

(1987)). Consequently, the conspirators are imbued with a degree of

trustworthiness in light of their lack of incentive to mischaracterize the actions of

their co-conspirators. Id. Statements made by a conspirator after the conspiracy has

come to a conclusion are not exempt from the hearsay rule. Id. (citing Krulewitch

v. United States, 336 U.S. 440, 441–42 (1949)); Deeb v. State, 815 S.W.2d 692,

696 (Tex. Crim. App. 1991).

The Rule of Optional Completeness provides that:

[w]hen part of an act, declaration, conversation, writing or recorded statement is given in evidence by one party, the whole on the same subject may be inquired into by the other, and any other act, declaration, writing or recorded statement which is necessary to make it fully understood or to explain the same may also be given in evidence, as when a letter is read, all letters on the same subject between the same parties may be given.

28 TEX. R. EVID. 107 (since amended).

This rule is an exception to the hearsay rule and permits the introduction of

otherwise inadmissible evidence when necessary to fully and fairly explain a

matter “opened up” by the adverse party. Walters v. State, 247 S.W.3d 204, 218

(Tex. Crim. App. 2007). The purpose of the rule “is to reduce the possibility of the

jury’s receiving a false impression from hearing only a part of some act,

conversation, or writing.” Tovar v. State, 221 S.W.3d 185, 190 (Tex. App.—

Houston [1st Dist.] 2006, no pet.). The rule is not implicated until a party attempts

to have a portion of the recorded statement “given in evidence.” Sauceda v. State,

129 S.W.3d 116, 122 (Tex. Crim. App. 2004) (quoting TEX. R. EVID. 107).

In the instant case, appellant contends that Thornton’s statement was in

furtherance of the conspiracy because she was attempting to prevent the police

from learning of the existence of the conspiracy. Appellant cites to King v. State,

189 S.W.3d 347 (Tex. App.—Fort Worth 2006, no pet.), in which statements made

in an effort to conceal evidence that would incriminate the co-conspirators for

murder was admissible because the statements benefitted the conspiracy.

Appellant also contends that, when Thornton gave testimony that was at odds with

her statement made to Clopton, the jury was entitled to the benefit of the whole of

her statement under the Rule of Optional Completeness. Appellant states that the

29 jury was deprived of the full flavor of the exchange taking place between Sergeant

Clopton and Thornton on December 28, 2011, and that the trial court’s rulings

prevented appellant from presenting a full and complete defense because “the jury

should have been afforded the opportunity to understand how Thornton went from

claiming ignorance (with Clopton) to becoming the star witness for the State at

trial.”

However, error, if any in refusing to admit Thornton’s statement under any

of the asserted grounds is harmless. Exclusions of evidence are unconstitutional

only if they “significantly undermine fundamental elements of the accused’s

defense.” Potier v. State, 68 S.W.3d 657, 666 (Tex. 2002) (citing United States v.

Scheffer, 523 U.S. 303, 315, 118 S. Ct. 1261 (1998)). That the defendant was

unable to present his case to the extent and in the form he desired is not prejudicial

where, as here, he was not prevented from presenting the substance of his defense

to the jury. Id.

When Thornton testified, she candidly admitted on both direct and cross-

examination that she had been dishonest when she initially told Sergeant Clopton

that there was no plan to rob or murder the complainant. The State’s questions did

not leave a false impression with the jury, and the introduction of the statement

was not necessary for the jury to fully understand that Thornton had previously lied

to the police about her involvement in a plan to rob and murder Lopez. The jury

30 was also made aware that Thornton had pleaded guilty to a reduced charge after

she agreed to testify against her co-defendants. As such, exclusion of the further

evidence regarding Thornton’s statements to police did not affect appellant’s

“substantial right,” as he was able to make the jury aware of Thornton’s

inconsistent statements and the fact that she received a reduced charge. See id.;

TEX. R. EVID. 103(a) (“Error may not be predicated upon a ruling which admits or

excludes evidence unless a substantial right of the party is affected . . . .”); TEX. R. APP.

P. 44.2(b) (“Any other error, defect, irregularity, or variance that does not affect

substantial rights must be disregarded.”).

We overrule points of error six, seven, and eight.

EXLUSION OF EVIDENCE OF HABIT AND ROUTINE

In point of error nine, appellant contents the trial court erred by refusing to

permit cross-examination of Amber Thornton regarding a prior incident involving

lying to the police. At trial, defense counsel attempted to ask Thornton about

whether she had lied to police on other occasions. The State objected that defense

counsel was improperly trying to impeach Thornton with specific acts of

misconduct. The trial court sustained the objection.

On appeal, appellant contends that the evidence should have been admissible

as evidence of habit under Texas Rule of Evidence 406, which provides:

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or

31 organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

TEX. R. EVID. 406.

To preserve a complaint for appellate review, a party must have presented to

the trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling if they are not apparent from the context of the request,

objection, or motion. TEX. R. APP. P. 33.1(a)(1); Clark v. State, 365 S.W.3d 333,

339 (Tex. Crim. App. 2012). A general or imprecise request suffices to preserve

error only if the legal basis for the request is obvious to the court and to opposing

counsel. See Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006). The

point of error raised on appeal must comport with the request made at trial. See

Yazdchi v. State, 428 S.W.3d 831, 844 (Tex. Crim. App. 2014); Clark, 365 S.W.3d

at 339. Failure to properly object or make a request at trial may waive even

constitutional errors. See Yazdchi, 428 S.W.3d at 844; Clark, 365 S.W.3d at 339.

At trial, appellant never invoked rule 406 or argued that the evidence was

admissible as evidence of habit. Thus, appellant has waived the right to raise this

complaint on appeal.

We overrule point of error nine.

JURY INSTRUCTION ON NECESSITY

32 In point of error ten, appellant contends the trial court erred when it refused

his requested jury instruction on necessity. Specifically, appellant admits that he

tied up the children and helped steal the complainant’s property, but contends he

was forced to do so out of fear of his co-defendant, Facundo.

Generally, a defendant is entitled to a jury instruction on every defensive

issue raised by the evidence as long as such an instruction is properly requested.

Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999); Reese v. State, 877

S.W.2d 328, 333 (Tex. Crim. App. 1994); McGann v. State, 30 S.W.3d 540, 547

(Tex. App.—Fort Worth 2000, pet. ref’d); Miller v. State, 940 S.W.2d 810, 812

(Tex. App.—Fort Worth 1997, pet. ref’d). If a defendant produces evidence raising

each element of a requested defensive instruction, she is entitled to the instruction

regardless of the source and strength of the evidence. Hamel v. State, 916 S.W.2d

491, 493 (Tex. Crim. App. 1996) (recognizing that “an accused has the right to an

instruction on any defensive issue raised by the evidence, whether that evidence is

weak or strong, unimpeached or contradicted, and regardless of what the trial court

may or may not think about the credibility of the defense”); Miller v. State, 815

S.W.2d 582, 585 (Tex. Crim. App. 1991) (op. on reh’g); Brazelton v. State, 947

S.W.2d 644, 646 (Tex. App.—Fort Worth 1997, no pet.). The credibility of the

evidence presented regarding the defense is immaterial in determining whether the

33 instruction is required. Muniz v. State, 851 S.W.2d 238, 254 (Tex. Crim. App.

1993); Miller, 815 S.W.2d at 585; Shafer v. State, 919 S.W.2d 885, 887 n.1 (Tex.

App.—Fort Worth 1996, pet. ref’d). A defendant’s testimony alone is sufficient to

raise a defensive issue requiring an instruction in the jury charge. Hayes v. State,

728 S.W.2d 804, 807 (Tex. Crim. App. 1987); Warren v. State, 565 S.W.2d 931,

933–34 (Tex. Crim. App. 1978). We review the evidence offered in support of a

defensive issue in the light most favorable to the defense. Shafer, 919 S.W.2d at

887 n.1.

To raise necessity, a defendant must admit he committed the offense and

then offer necessity as a justification. See Young v. State, 991 S.W.2d 835, 839

(Tex. Crim. App.), cert. denied, 528 U.S. 1063, 120 S. Ct. 618 (1999). The defense

of necessity “exonerates a person who commits proscribed conduct in order to

prevent an even greater harm.” Acosta v. State, 660 S.W.2d 611, 614 (Tex. App.—

Corpus Christi 1983, no pet.).

The Texas Penal Code authorizes necessity as a justification defense to a

criminal charge if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

34 (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

TEX. PENAL CODE ANN. § 9.22(1)–(3) (West 2011); see also id. § 9.02 (West 1994)

(providing “[i]t is a defense to prosecution that the conduct in question is justified

under this chapter.”). The requirements of subsections 9.22(1) and (2) must be

satisfied by evidence, while subsection (3) presents a question of law. Leach v.

State, 726 S.W.2d 598, 600 (Tex. App.—Houston [14th Dist.] 1987, no pet.).

Section 9.22, subsection (1) sets forth the basic two-prong test a defendant

must satisfy in order to be entitled to a jury instruction on the defense of necessity.

First, a defendant is required to present evidence that she reasonably believed a

specific harm was imminent. See TEX. PENAL CODE ANN. § 9.22(1); Johnson v.

State, 650 S.W.2d 414, 416 (Tex. Crim. App. 1983); Brazelton, 947 S.W.2d at 648.

“Imminent” means something that is impending, not pending; something that is on

the point of happening, not about to happen. Jackson v. State, 50 S.W.3d 579, 594–

95 (Tex. App.—Fort Worth 2001, pet. ref’d); Smith v. State, 874 S.W.2d 269, 272–

73 (Tex. App.—Houston [14th Dist.] 1994, pet. ref’d). Harm is imminent when

there is an emergency situation and it is “immediately necessary” to avoid that

harm. Jackson, 50 S.W.3d at 594–95; Smith, 874 S.W.2d at 273. In other words, a

split-second decision is required without time to consider the law. Jackson, 50

S.W.3d at 595; Smith, 874 S.W.2d at 273.

35 Second, a defendant must present evidence that he reasonably believed the

criminal conduct was immediately necessary to avoid the imminent harm. See TEX.

PENAL CODE ANN. § 9.22(1); Brazelton, 947 S.W.2d at 648. “Reasonable belief”

means a belief that would be held by an ordinary and prudent man in the same

circumstances as the actor. TEX. PENAL CODE ANN. § 1.07(a)(42) (West 2011). As

a general rule, determination of the reasonableness of an accused’s belief is a

question of fact, and should be viewed from the accused’s standpoint at the time he

acted. Fitzgerald v. State, 782 S.W.2d 876, 885 (Tex. Crim. App. 1990); Brazelton,

947 S.W.2d at 648 (citing Sanders v. State, 707 S.W.2d 78, 79–80 (Tex. Crim.

App. 1986)); Juarez v. State, 886 S.W.2d 511, 514 (Tex. App.—Houston [1st

Dist.] 1994, pet. ref’d).

In Murkledove v. State, 437 S.W.3d 17, 24–25 (Tex. App.—Fort Worth

2014, pet. dism’d, untimely filed), the defendant, Murkledove, requested a

necessity instruction, arguing that “he acted out of necessity to preserve his own

life because [a co-defendant] said he would kill [the intended robbery victim] and

Murkledove feared that if he did not participate, [the co-defendant] would kill him

too.” The court held that Murkledove failed to show that he was entitled to a

necessity instruction, noting that “nothing in the record reflects that [the co-

defendant] may any threats—immediate or otherwise—to Murkledove if he did not

36 assist with the break-in. Even if one could infer that Murkledove feared the

possibility of or potential harm to himself or his family, no evidence exists upon

which an inference could be made that harm was imminent when he decided to

act.” Id. at 25.

The same is true in this case. There is no evidence that appellant faced any

imminent threat of harm from Facundo. As in Murkledove, there is no evidence

that the co-defendant, Facundo, had made any threats to appellant, immediate or

otherwise. Thus, like the court in Murkledove, we conclude that appellant has

failed to show that he was entitled to a necessity instruction.

We overrule point of error ten.

JURY INSTRUCTION ON LESSER-INCLUDED OFFENSE OF THEFT

In his eleventh point of error, appellant contends “the trial court erred when

it refused appellant’s request for a jury instruction on the [misdemeanor] lesser

included offense of theft.” The charge included an instruction on the lesser-

included offense of theft of property of the value of $1,500 or more, but less than

$20,000, a state jail felony, but the trial court refused appellant’s request for a

lesser-included offense of theft of property with a value of less than $1,500.1

1 Theft of property is classified as a Class A misdemeanor if the value of the stolen property is $500 or more, but less than $1,500. TEX. PENAL CODE ANN. § 31.03(e)(3) (West Supp. 2014). 37 Specifically, appellant pointed to evidence in his own statement to police in which

he stated that he received less than $1,000 from what was taken from Lopez.

We review the trial court’s decision on the submission of a lesser-included

offense for an abuse of discretion. See Jackson v. State, 160 S.W.3d 568, 575 (Tex.

Crim. App. 2005). The trial court abuses its discretion when its decision is

arbitrary, unreasonable, or without reference to guiding rules or principles. See

Makeig v. State, 802 S.W.2d 59, 62 (Tex. Crim. App. 1990). Because the trial court

has no discretion in determining the applicable law, the trial court also abuses its

discretion when it fails to analyze the law correctly and apply it to the facts of the

case. See State v. Kurtz, 152 S.W.3d 72, 81 (Tex. Crim. App. 2004).

We apply a two-prong test when determining whether a defendant is entitled

to an instruction on a lesser-included offense. See Wortham v. State, 412 S.W.3d

552, 554 (Tex. Crim. App. 2013); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.

Crim. App. 1993); Royster v. State, 622 S.W.2d 442, 444 (Tex. Crim. App. 1981).

First, we consider whether the lesser-included offense is included within the proof

necessary to establish the charged offense. See TEX. CODE CRIM. PROC. ANN. art.

37.09; Flores v. State, 245 S.W.3d 432, 439 (Tex. Crim. App. 2008). If it is, we

then examine whether there is evidence in the record that would permit a jury to

rationally find that if the defendant is guilty, he is guilty of only the lesser-included

38 offense. See Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985). The

evidence must establish that the lesser-included offense is a valid, rational

alternative to the charged offense. See Segundo v. State, 270 S.W.3d 79, 90–91

(Tex. Crim. App. 2008). Anything more than a scintilla of evidence is sufficient to

entitle a defendant to the lesser charge. See Goad v. State, 354 S.W.3d 443, 446

(Tex. Crim. App. 2011). We review all of the evidence in the light most favorable

to the requested lesser-included offense, regardless of whether the evidence was

produced by the State or the defendant, or whether the evidence was strong, weak,

unimpeached, or contradicted. See Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim.

App. 1985).

A person commits a theft “if he unlawfully appropriates property with intent

to deprive the owner of property.” See TEX. PENAL CODE ANN. § 31.03(a) (West

Supp. 2014). The Penal Code describes several grades of theft ranging from a

Class C misdemeanor to a felony of the first degree. See id. § 31.03(e). With few

exceptions not applicable here, the only element distinguishing one grade of theft

from another is the value of the property taken. See id. Under Texas law, the value

of the property taken is an essential element of the offense. See Simmons v. State,

109 S.W.3d 469, 478–79 (Tex. Crim. App. 2003); Sowders v. State, 693 S.W.2d

448, 450 (Tex. Crim. App. 1985); Christiansen v. State, 575 S.W.2d 42, 44 (Tex.

39 Crim. App. 1979); McKnight v. State, 387 S.W.2d 662, 663 (Tex. Crim. App.

1965).

Here, appellant fails to meet the second prong of the test for lesser-included

offenses, i.e., there is no evidence that would permit a jury to rationally find that if

the defendant is guilty, he is guilty of only a theft of less than $1,500. Although

appellant told the officer that his share of the robbery was less than $1,000, he also

stated that the amount taken was valued at between $3,000 and $4,000. It is the

amount stolen, not the amount of appellant’s share of the stolen property, that

determines the crime charged. The evidence was that appellant participated in a

theft of televisions, a game system, a jewelry box, guns, laptops, drugs, money,

and an SUV. There is no evidence that would support appellant’s contention that

the total of the stolen property was less than $1,000, even if he personally received

less. A defendant is not entitled to an instruction of the lesser-included offense of

theft unless the record clearly reflects the value of the stolen property. See

Ramirez v. State, 422 S.W.3d 898, 901–02 (Tex. App.—Houston [14th Dist.] 2014,

pet. ref’d) (holding defendant not entitled to lesser-included instruction on theft

based on mere speculation as to stolen property’s value.).

40 There being no evidence that the total of the property stolen was less than

$1,500, the trial court did not err in overruling appellant’s request for an instruction

on a lesser-included misdemeanor theft charge.

We overrule point of error eleven.

COMMENT ON THE WEIGHT OF THE EVIDENCE

In the jury charge, the trial court instructed the jury on the law relating to

criminal conspiracy as follows:

By the term “conspiracy” as used in these instructions, is meant an agreement between two or more persons with intent, that they, or one or more of them, engage in conduct that would constitute the offense. An agreement constituting a conspiracy, if any, may be inferred from acts of the parties.

The charge did not reference TEX. PENAL CODE ANN. § 15.02(a)(2) (West 2011),

which requires that “one or more of [the co-conspirators] perform[] an overt act in

pursuance of the agreement.” At trial, and in his twelfth point of error, appellant

contends that the second sentence above, coupled with the omission of the

requirement of an “overt act,” constitutes a comment on the weight of the evidence

in violation of article 38.05 of the Code of Criminal Procedure.2

2 In ruling upon the admissibility of evidence, the judge shall not discuss or comment upon the weight of the same or its being in the case, but shall simply decide whether or not it is admissible; nor shall he, at any state of the proceedings 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). 41 A. Applicable Law

The trial court must provide the jury with “a written charge distinctly setting

forth the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007). Moreover, the trial court may not express “any opinion as to the

weight of the evidence.” Id.; Walters v. State, 247 S.W.3d 204, 208 (Tex. Crim.

App. 2007). An instruction, albeit facially neutral and legally accurate, may

nevertheless constitute an improper comment on the weight of the evidence. See,

e.g., Brown v. State, 122 S.W.3d 794, 797 (Tex. Crim. App. 2003).

In Brown v. State, the trial court instructed, in its original charge to the jury,

that “intent or knowledge may be inferred by acts done or words spoken.” Id.

Despite the legal accuracy of the instruction, the court of criminal appeals held that

it improperly “singles out a specific type of evidence and tells the jury that it may

infer an element of the crime” from that evidence. Id. at 800–01. The error, the

court explained, “lies in instructing the jury that they may apply such an

inference.” Id. at 800 (quoting Browning v. State, 720 S.W.2d 504, 507 (Tex.

Crim. App. 1986)). This is because the inference is “a judicial review device” or “a

common-sense tool for a trial judge” used to gauge evidentiary sufficiency, “not an

explicit legal tool for the jury.” Id. at 802–03. The court thus concluded that,

although a “close call,” the trial court erred because it “focus[ed] the jury’s

42 attention on the type of evidence that may support a finding of criminal intent.” Id.

at 802.

The same is true in this case. The court’s instruction that “[a]n agreement

constituting a conspiracy, if any, may be inferred from acts of the parties[,]” is a

correct statement of the law. See TEX. PENAL CODE ANN. § 15.02(b) (West 2011).

However, like the instruction in Brown, by referring to an inference that is used for

judicial review, it “focus[ed] the jury on the type of evidence” that may support a

finding of a criminal conspiracy. See Brown, 122 S.W.3d at 802. Thus, we

conclude that the trial court erred by including the challenged instruction in the

charge.

C. Harm

Thus, we must decide whether the error is harmful. If, as here, the error in

the charge was the subject of a timely objection in the trial court, reversal is

required if the error is “calculated to injure the rights of the defendant” which

means that there must be some harm to the accused from the error. Id. at 803

(citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. 1984)).

In Brown, the Court of Criminal Appeals concluded that the instruction,

which is very similar to the instruction in this case, “was mild, neutral, and an

obvious common-sense proposition[,]” and did nothing more than what the parties

43 themselves did at trial, i.e., focus on whether appellant’s acts and words

demonstrated his intent to kill. Id.

Here, the instruction that “a conspiracy may be inferred from acts of the

parties,” like the instruction in Brown, “was benign, albeit improper,” and focused

the jury on the acts of the parties in forming the conspiracy, just as was done by

litigants at trial. See id. As such, “the error was not, in any sense, harmful under

Almanza.” See id.

We overrule appellant’s twelfth point of error.

CONCLUSION

We affirm the trial court’s judgment.

Sherry Radack Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).