In The
Court of Appeals
Ninth District of Texas at Beaumont
________________ NO. 09-21-00273-CR ________________
YOVAHNIS FABAIN ROQUE, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 128th District Court Orange County, Texas Trial Cause No. A190150-R ________________________________________________________________________
MEMORANDUM OPINION
Appellant Yovahnis Roque was convicted of capital murder and sentenced to
life imprisonment in the Institutional Division of the Texas Department of Criminal
Justice. Tex. Penal Code Ann. §§ 12.31(a)(2), 19.03(a)(8). In two appellate issues,
he challenges the admissibility of evidence suggesting that he was voluntarily
intoxicated at the time of the offense, evidence that Roque suggests would preclude
a jury finding him insane. Tex. Penal Code Ann. §§ 8.01(a), 8.04(a); See Davis v.
1 State, 313 S.W.3d 317, 329-30 (Tex. Crim. App. 2010) (discussing voluntary
intoxication). Finding no reversible error, we affirm the judgment of the trial court.
I. Background
Appellant killed his two-year-old daughter Sophia by beating her with a
hammer. 1 Appellant did not dispute that he did so, but pleaded “not guilty by reason
of insanity[,]” meaning that at the time of the offense, he suffered from a “severe
mental disease or defect[]” that prevented him from “know[ing] that his conduct was
wrong.” Tex. Penal Code Ann. § 8.01(a).
Because “[v]oluntary intoxication does not constitute a defense to the
commission of a crime[,]” the State offered the challenged evidence of intoxication.
See Tex. Penal Code Ann. § 8.04(a); Sakil v. State, 287 S.W.3d 23, 26-28 (Tex.
Crim. App. 2009). The trial court admitted the evidence over Appellant’s objection.
Appellant argues that the voluntary intoxication evidence was inadmissible,
prejudiced the jury, and without the admission of this evidence the jury would have
found him not guilty by reason of insanity. We disagree. We summarize the relevant
testimony below.
1 We use pseudonyms to refer to the victim and her grandmother to conceal their identities. See Tex. Const. art. I, § 30 (granting crime victims “the right to be treated with fairness and with respect for the victim’s dignity and privacy throughout the criminal justice process[.]” See Smith v. State, No. 09-17-00081-CR, 2018 WL 1321410, at *1, n. 1 (Tex. App.—Beaumont Mar. 14, 2018, no pet.) (mem. op., not designated for publication). 2 1. The First Responders’ Testimony
The jury heard testimony from four of the law enforcement officers who
responded to the scene of Sophia’s death. Chase Alexander was a patrol sergeant
with the Orange County Sheriff’s Office; Logan Holland was a sergeant with the
Orange Police Department; Isaac Henry also was employed by the City of Orange
Police Department; and Jesse Romero was the Assistant Chief of Police with the
City of West Orange. Each of these witnesses testified that he was a certified peace
officer in the State of Texas and outlined his respective duties and experience in law
enforcement.
On the date of Sophia’s death, Alexander was one of the first officers at the
scene. When he arrived, he saw Appellant at the doorway of the house, naked and
covered with blood and brain matter. He therefore ordered Appellant at gunpoint to
lie on the ground and crawl toward him; Appellant complied, and Holland placed
Appellant in handcuffs. Once Appellant was detained, Alexander and Romero
performed a protective sweep of the house to check for other potential threats. They
found no threats but observed that one of the bedrooms was in disarray and was
covered with blood. Holland later discovered Sophia’s body in the closet of that
bedroom.
3 While Appellant was restrained in front of the house, Henry read Appellant
his rights. 2 Although Appellant did not then articulate an understanding of his rights,
he did state that he had killed his daughter. Henry also assisted with the search of
the house, which yielded Appellant’s cell phone, possible marijuana, and pills later
determined to be methamphetamine.
2. The Interviewers’ Testimony
Detective John Dee Taylor and Major Sparky Robinson, employees of the
Orange Police Department, interviewed Appellant at the police station. They
testified to Appellant’s statements and actions during the interview, noting that
Appellant seemed aware of the situation, and made both coherent and nonsensical
statements. Specifically, their testimony shows that Appellant stated he had
discovered a foreign substance in Sophia’s brain, denied killing her, yet admitted
hitting her in the head with a hammer. The detectives stated that in his interview the
Appellant indicated he had no recollection of Sophia’s death, told them that he was
“going mad[,]” and admitted that he sometimes blacked out while using drugs. The
Appellant also told the detectives he was sober when he was interviewed. Taylor
testified that Roque was not tested for drug use before he was interviewed because
Taylor believed probable cause did not exist to justify that type of test.
2 See Miranda v. Arizona, 384 U.S. 436 (1966). 4 When the detectives asked Roque whether it would have been wrong to kill
Sophia, he acknowledged it would be wrong.
3. Dr. John Ralston’s Testimony
Ralston is the forensic pathologist who performed Sophia’s autopsy. He
described his educational and professional qualifications and outlined the purpose
and general procedure for conducting an autopsy. With specific reference to
Sophia’s autopsy, he noted that she was nude and that her body was covered in blood
and brain matter. Sophia had suffered multiple severe injuries, including “a massive
gaping skull fracture[]” and other injuries consistent with the claws from a claw
hammer. Ralston further noted that “[a] great deal of brain tissue was missing from
her skull[,]” and that her brain weighed “less than half what you’d expect for a child
that age.” In Ralston’s opinion, Sophia died as the result of multiple blunt force
injuries consistent with the use of a hammer.
4. Marie Abshire’s Testimony
Abshire is Appellant’s mother. She outlined Appellant’s history of mental
health issues, beginning with his becoming “paranoid” after being assaulted in
school when he was about twelve years old. Thereafter, Appellant had ongoing
problems, including depression. When Sophia was three weeks old, Appellant and
Sophia’s mother were struck by an intoxicated driver. Sophia’s mother was killed in
5 the collision, and Appellant sustained a severe head injury. Following that accident,
Appellant and Sophia resided with Abshire.
During the two days preceding Sophia’s death, Appellant did not sleep and
ate very little. He was “acting upset” and behaving oddly, and he apparently was
hallucinating. Abshire therefore obtained an order to have Appellant committed, but
when she returned home after doing so, she saw what had happened to her
granddaughter.
5. Dr. Edward Gripon’s Testimony
Gripon, a psychiatrist, outlined his education, training, and experience in the
medical field. The trial court appointed Gripon to evaluate Appellant’s competency
to stand trial, as well as Appellant’s sanity the day Sophia’s murder occurred. After
determining that Appellant was competent to stand trial, Gripon reviewed
Appellant’s “extensive” mental health records to assess Appellant’s sanity on the
day Sophia died. Dr. Gripon noted that Appellant not only had a personal mental
health history that went “back quite some time[,]” but that Appellant had a family
history of mental health issues. Gripon testified that Appellant had a genetic
predisposition to suffer from certain mental health conditions. Gripon specifically
mentioned that Appellant sustained a severe head injury and was diagnosed with
post-traumatic stress disorder following an accident that resulted in the death of
Sophia’s mother. He also noted that Appellant has had “a history of mental health
6 difficulties since he was a teenager[]” and that Appellant has a history of depression,
anxiety, panic attacks, hallucinations, a mood disorder, and multiple suicide
attempts. He further stated that Appellant exhibited “occasional psychotic
symptoms[,]” such as hallucinations. Gripon testified that, to cope with these
problems, Appellant reported using and abusing several prescription and illegal
drugs, including Xanax and marijuana, drugs that Dr. Gripon indicated tend to calm
the user.
Gripon testified that, during the time frame immediately preceding Sophia’s
death, Appellant became increasingly delusional. Appellant reported to Gripon that
Appellant believed that “the world was coming to an end[,]” and he was digging a
hole in his yard to save his family. Appellant told Gripon that on the morning of
Sophia’s death, Appellant believed that Sophia had a microchip implanted in her and
“[t]hought all of these terrible things were happening.” In Gripon’s opinion,
Appellant’s ability to recall his thoughts from that time was consistent with
psychosis, not intoxication. The recordings of Appellant’s irrational statements at
the time of his initial interviews reinforced this opinion. When Dr. Gripon evaluated
Appellant, Appellant was taking five different medications, including anti-psychotic
medications, to address his mental health according to Dr. Gripon. Dr. Gripon
believed these medications had improved Appellant’s mental status.
7 Gripon testified that, at the time of Sophia’s death, Appellant was suffering
from a severe mental disease or disorder and that Appellant’s psychotic episode
would have rendered him unable to distinguish between right and wrong. He based
this opinion on the lack of a rational reason for Appellant’s actions. When asked
about the relationship between an episode and an intoxicant, Gripon stated that a
drug would not cause a psychotic episode unless the individual had an “underlying
propensity for the mental illness itself.” In contrast, however, he noted that “[w]here
you commonly may see psychosis is in methamphetamine abuse” and in the use of
synthetic marijuana. Gripon stated that it is not possible to separate the effects of a
drug from the effects of an underlying mental illness. Even though it is impossible
to separate the two, Gripon noted that illegal drug use will exacerbate psychosis, as
will sleep deprivation. Moreover, use of methamphetamine, a stimulant, will cause
sleep deprivation. Appellant acknowledged to Gripon his use of methamphetamine
but contended that he had not used it recently.
6. Detective Theodore Hilyar’s Testimony
Hilyar, a detective sergeant with the Orange Police Department, testified to
the content of the cell phone found in Appellant’s bedroom. Hilyar generally works
as a narcotics investigator. Hilyar coordinated the content of Appellant’s phone with
corresponding content in a phone seized from another individual in an unrelated
investigation. Appellant objected to this evidence on three grounds: (1) that it was
8 hearsay, (2) that it constituted inadmissible prior bad acts, and (3) that Hilyar lacked
the ability to interpret the text messages. The trial court overruled these objections
and permitted Hilyar to testify that several days before Sophia’s death, Appellant
was buying prescription and illegal drugs from a known drug dealer named
Caldwell. Hilyar testified that, because Appellant did not provide a blood sample at
the time of his arrest, it could not be determined whether he was intoxicated on the
day the murder occurred.
7. Dallas Moreau’s Testimony
The State called Moreau, a licensed professional counselor, as a rebuttal
witness. He described his education, training, and experience, and explained his
professional practice, which includes performing suicide evaluations on inmates at
the Orange County jail. Moreau’s experience also includes work in substance abuse
treatment.
Moreau evaluated Appellant’s suicide potential on the day after Sophia’s
death. Moreau described Appellant as “very upset, very distraught,” in the initial
visit, but he said Roque responded accurately when asked his name, age, and about
his surroundings. Appellant also told Moreau that he had killed Sophia and was
“very remorseful[]” over Sophia’s death. Although Moreau was not permitted to
express an opinion about Appellant’s sanity, Moreau testified that he had no doubt
that when he evaluated Roque, Roque understood that killing Sophia was wrong.
9 Moreau said he couldn’t recall whether Appellant’s mental health history
included violent outbursts or major psychotic breaks. The absence of a history of
violence, Moreau explained, led him to suspect substance abuse. Moreau testified
that he asked Appellant about his drug use. According to Moreau, Roque told him
that he had smoked marijuana and that his mother had given him a pill that “kept
him awake for four days.” Moreau noted that abuse of amphetamines or other
stimulants can cause prolonged wakefulness, and that an extended lack of sleep may
cause a break with reality. Moreau testified that “[m]ost drugs clear the system in
about three to maybe five days[,]” So, Moreau said that he directed the jail staff to
observe Appellant during that period to see if Appellant’s mental status improved.
Moreau reported that Appellant’s situation improved after he was jailed, and Rogue
regained some lucidity. Moreau acknowledged, however, that he had no concrete
evidence, such as a drug test, to demonstrate that Rogue was under the influence of
drugs when he was arrested or when the murder occurred.
II. Standard of Review
“We review a trial court’s decision regarding the admissibility of evidence
under an abuse of discretion standard.” Cameron v. State, 241 S.W.3d 15, 19 (Tex.
Crim. App. 2007) (citing Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim.
App. 1991)). Trial courts are in the best position to resolve questions of
admissibility, therefore appellate courts will uphold a trial court’s decision on
10 admissibility as long as the decision is not outside the “zone of reasonable
disagreement.” Rodriguez v. State, 203 S.W.3d 837, 841 (Tex. Crim. App.
2006); Montgomery, 810 S.W.2d at 391.
III. Analysis
1. Device Data Reports/Detective Hilyar’s Testimony
Appellant argues that the trial court erred in admitting State’s exhibits 79 and
80, the records of Appellant’s text messages, because the texts were inadmissible as
hearsay and admitting them violated Rule 404(b) of the Texas Rules of Evidence.
See Tex. R. Evid. 404(b), 802. Exhibit 79 reflects text message exchanges retrieved
from Appellant’s phone. Exhibit 80 shows substantially the same text message
exchanges retrieved from the phone of a known drug dealer. As noted above, these
messages show that during the days preceding Sophia’s death, Appellant was buying
and attempting to buy various prescription and illicit drugs. Therefore, the evidence
was relevant to the issues at trial. See Tex. R. Evid. 401.
a. Hearsay Objection
Evidence of the content of text messages on a cell phone may be inadmissible
hearsay if there is no evidence that the declarant sent the messages. See Black v.
State, 358 S.W.3d 823, 832 (Tex. App.—Fort Worth 2012, pet. ref’d). Appellant did
not, however, make this particular objection to the trial court, and therefore has failed
to preserve error regarding this argument. See Tex. R. App. P. 33.1(a)(1); Golliday
11 v. State, 560 S.W.3d 664, 668-71 (Tex. Crim. App. 2018) (discussing proper
preservation of error and holding that the appellate complaint was not properly
preserved). Even had Appellant made a timely objection challenging the lack of
authentication of these text messages, such an objection would have been resolved
in the State’s favor. Text messages may be authenticated in multiple ways, including
by circumstantial evidence. See Tienda v. State, 358 S.W.3d 633, 639-40 (Tex. Crim.
App. 2012). Evidence before the trial court included circumstances that Appellant’s
cell phone was found in his bedroom, in a house he shared with only his mother and
his two-year-old daughter. There is no indication in the record that the phone or the
messages it contained belonged to either of the other occupants of the house. We
conclude the trial court had ample evidence to show that the text messages were
communicated by Roque.
Appellant’s own text messages are not hearsay, as they are admissions by a
party opponent. See Tex. R. Evid. 801(e)(2)(A); Trevino v. State, 991 S.W.2d 849,
852-53 (Tex. Crim. App. 1999) (holding that a defendant’s own statements are not
hearsay).
As to Caldwell’s text messages to Appellant, they are hearsay. Tex. R. Evid.
801(d). Because these text messages reference Caldwell’s own participation in
illegal drug transactions, however, they tend to expose Caldwell to criminal liability.
These statements also are supported by corroborating circumstances that indicate
12 their trustworthiness. Consequently, Caldwell’s text messages fall within an
exception to the rule that generally prohibits the admission of evidence that qualifies
as hearsay. See Woods v. State, 152 S.W.3d 105, 112-13 (Tex. Crim. App. 2004);
Tex. R. Evid. 803(24). Because Appellant’s and Caldwell’s text message statements
constitute a hearsay exclusion and a hearsay exception, respectively, the trial court
did not abuse its discretion by admitting State’s exhibits 79 and 80.
b. Appellant’s Rule 404(b) Objection
The evidence of Appellant’s drug transactions would have been inadmissible
if it were “offered solely for proving bad character and conduct in conformity with
that bad character.” Dabney v. State, 492 S.W.3d 309, 317 (Tex. Crim. App. 2016)
(emphasis added); Tex. R. Civ. P. 404(b)(1). This evidence was not, however,
offered solely for that purpose. Instead, it was offered to rebut Roque’s defensive
theory, his defense of insanity, and for that reason we conclude that the evidence of
the drug transactions at issue was admissible. See Dabney, 492 S.W.3d at 317; Tex.
R. Evid. 404(b)(2).
Appellant has argued that because he did not offer evidence specific to
intoxication, he did not open the door to this evidence simply by pleading insanity.
We disagree. Appellant offered Dr. Gripon’s testimony to support his insanity
defense. This evidence of Appellant’s alleged insanity therefore opened the door to
the admissibility of extraneous evidence tending to rebut insanity, including
13 evidence of voluntary intoxication. See Villanueva v. State, No. 01-20-00303-CR,
2021 WL 2832974, at *11 (Tex. App.—Houston [1st Dist.] July 8, 2021 (no pet.)
(mem. op.) (not designated for publication) (discussing the admissibility of evidence
of voluntary intoxication to rebut an insanity defense under analogous facts).
We overrule Appellant’s first issue.
2. Dallas Moreau’s Testimony
At trial, Appellant objected to Moreau’s testimony on the basis that Moreau
was not qualified to testify regarding Appellant’s sanity because Moreau’s
professional qualifications did not meet the statutory requirements set forth in article
46C.102 of the Texas Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. art
46C.102(a)(1). Appellant also objected that Moreau was not a qualified expert under
the Texas Rules of Evidence. Tex. R. Evid. 702. Appellant further contended that
because Moreau could not render an opinion as to Appellant’s sanity at the time of
the offense, his testimony was irrelevant to any fact of consequence in the case.
Therefore, Appellant argues, Moreau’s testimony should have been disallowed in its
entirety pursuant to Rules 401 and 402 of the Texas Rules of Evidence. Tex. R. Evid
401, 402.
In addressing the initial objection, the trial court relied on Pham v. State to
decide that the cited portion of the Code of Criminal Procedure applies only to court-
appointed experts. See Pham v. State, 463 S.W.3d 660, 670 (Tex. App.—Amarillo
14 2015, pet. ref’d); Tex. Code Crim. Proc. Ann. art. 46C.102(a). In Pham, a court-
appointed neuropsychiatrist testified that the appellant was insane at the time of the
offense. Pham, 463 S.W.3d at 665-66. To rebut that evidence, the State retained an
expert who testified that the appellant was sane at the relevant point in time. Id. The
appellant contended that the trial court erred in admitting the testimony of the State’s
retained expert because that expert’s qualifications did not meet the statutory criteria.
Id. at 667. In rejecting this argument, the Pham court noted that “the plain language
of Article 46C.102 itself suggests that it applies only to court-appointed experts[.]”
Id. at 669. Because Moreau was not a court-appointed expert, we conclude, as did
our sister court, that the strict statutory criteria did not apply to Moreau’s testimony.
See Tex. Code Crim. Proc. Ann. art. 46C.102(a).
After implicitly overruling Appellant’s initial objection to Moreau’s
qualifications, the trial court conducted a hearing outside the jury’s presence to
determine Moreau’s expert qualifications pursuant to Rule 702 of the Texas Rules
of Evidence. See Tex. R. Evid. 702. During this hearing, Moreau provided detailed
testimony regarding his educational background, training, and clinical and forensic
experience. In particular, he stated that he has both a bachelor’s and a master’s
degree in clinical psychology, approximately forty years of clinical experience, and
roughly ten years of experience doing substance abuse counseling for Jefferson and
Orange Counties. Moreau also teaches psychology at a local college, and has
15 testified as a mental health expert on multiple occasions. Based on that information,
the trial court determined that Moreau met the Rule 702 standard to testify as an
expert. Tex. R. Evid. 702. Because Moreau’s testimony enabled the trial court to
find that Moreau was qualified “by knowledge, skill, experience, training, [and]
education[,]” and that his “specialized knowledge [would] help the trier of fact to
. . . determine a fact in issue[,]” the trial court did not abuse its discretion in
permitting Moreau to testify as an expert. Tex. R. Evid. 702; see Moreno v. State,
619 S.W.3d 754, 760-61 (Tex. App.—San Antonio 2020, no pet.) (holding that a
licensed professional counselor was a qualified expert witness under Rule 702).
Although the trial court precluded Moreau from testifying that Appellant was
or was not legally sane at the time of Sophia’s death, this evidentiary ruling does not
render Moreau’s testimony irrelevant. Moreau testified about Appellant’s
admissions and state of mind as of the day after Sophia’s death. The jury was
permitted to consider this evidence in weighing Appellant’s insanity defense. See
Otis v. State, No. 09-09-00140-CR, 2010 WL 1794932, at *3 (Tex. App.—
Beaumont May 5, 2010, no pet.) (mem. op) (not designated for publication) (noting
that a “jury may consider circumstantial evidence, including: the defendant’s
demeanor before and after the crime; . . . [and] the defendant’s expressions of regret
or fear, of the consequences of his actions; and any other possible explanations for
the defendant’s behavior.”) (citing Torres v. State, 976 S.W.2d 345, 347-48 (Tex.
16 App.—Corpus Christi 1998, no pet.)). According to the rationale of Otis, Moreau’s
testimony was relevant because it included Appellant’s demeanor after the crime and
his expressions of regret at having killed Sophia. Id. The trial court did not err in
admitting this evidence and we overrule Appellant’s second point of error.
3. Harmless Error
Contrary to Appellant’s implicit argument, the jury’s verdict does not
necessarily depend on the suggestion that Appellant was voluntarily intoxicated at
the time of the offense. Instead, the jury, as fact finder, was empowered to reject
Appellant’s insanity defense regardless of evidence of sanity or voluntary
intoxication. See Villanueva, 2021 WL 2832974, at *13 (addressing a jury’s ability
to reject an insanity defense). The burden of proving insanity fell to Appellant and
the jury was authorized to determine whether Appellant had met his burden of proof
by believing or disbelieving the evidence of insanity regardless of other evidence.
See Dashield v. State, 110 S.W.3d 111, 115-16 (Tex. App.—Houston [1st Dist.]
2003, pet. ref’d) (addressing a jury’s authority to disbelieve even uncontroverted
evidence of insanity).
The record contains evidence that within mere hours of Sophia’s death,
Appellant was capable of stating that he had hit her with a hammer and that it would
have been wrong to kill her. From this evidence, the jury could have inferred that,
notwithstanding expert testimony to the contrary, Appellant knew at the time of the
17 offense that his conduct was wrong. Id.; see also Bartel v. State, No. 02-16-00020-
CR, 2017 WL 1089689, at *4 (Tex. App.—Fort Worth Mar. 23, 2017, no pet.) (mem.
op) (not designated for publication) (holding that evidence of sanity was sufficient
to enable the jury to reject the insanity defense). Therefore, although we conclude
the trial court did not abuse its discretion in admitting any evidence, any error that
may have occurred in admitting evidence of voluntary intoxication was harmless
given the testimony that Appellant knew when the murder occurred that what he was
doing was wrong. See Tex. R. App. P. 44.2(b).
IV. Conclusion
Because the arguments Rogue relies on to support his issues lack merit, the
trial court’s judgment is affirmed.
AFFIRMED.
JAY WRIGHT Justice
Submitted on January 26, 2023 Opinion Delivered November 29, 2023 Do Not Publish
Before Golemon, C.J., Horton and Wright, JJ.