# Gregory Kennith Wise v. the State of Texas

> Texas Court of Appeals, 1st District (Houston) · August 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10511365

## Case

- **Court:** Texas Court of Appeals, 1st District (Houston)
- **Decided:** August 13, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

Opinion issued August 13, 2024

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-22-00895-CR
———————————
GREGORY KENNITH WISE, Appellant
V.
THE STATE OF TEXAS, Appellee

On Appeal from the 240th District Court
Fort Bend County, Texas
Trial Court Case No. 19-DCR-087757A

MEMORANDUM OPINION

A jury found appellant, Gregory Kennith Wise, guilty of the felony offense

of murder1 and assessed his punishment at confinement for life. In two issues,

appellant contends that the evidence was legally insufficient to support his

1
See TEX. PENAL CODE ANN. § 19.02(b), (c).
conviction and the trial court erred in denying his motion to testify free of

impeachment by prior convictions.

We affirm.

Background

Sharmil Simon testified that he previously worked at “Fast Food Saver,” a

convenience store owned by his uncle that was located on Texas Parkway. Simon

described the convenience store as a “neighborhood store” and noted that it had

“regular customers,” which were mostly people who lived in the surrounding

neighborhood. Simon could recognize the regular customers by their faces. In

2019, Simon worked at the convenience store seven days a week from 1:00 p.m. to

10:00 p.m. each day. Usually, during Simon’s shift, there were no more than two

or three people in the store at a time.

Simon also explained that the convenience store had surveillance cameras,

both inside the store and outside the store. And there was a monitor by the front

register that allowed Simon to view the videotaped recording from the surveillance

cameras “live.”

Simon further testified that he was working at the convenience store on June

7, 2019 when a “stabbing” occurred outside the store. He was inside the store at

the time and saw the stabbing on the monitor for one of the store’s outside

2
surveillance cameras. Simon also saw a man, the complainant,2 collapse outside

the store’s front entrance. Simon then went outside to ask the complainant “what

happened,” but the complainant did not respond. Simon tried to wake up the

complainant, but the complainant was unresponsive. Although Simon did not

know the complainant’s name, he recognized the complainant as one of the

convenience store’s regular customers, and according to Simon, he had never had

“any problems” with the complainant. Simon also noted that the complainant

came into the store on June 7, 2019, before the stabbing occurred, to buy a beer.

The complainant then sat down outside the store’s front entrance, which was not

uncommon for the complainant to do.3 Following the stabbing, other customers

called for emergency assistance to help the complainant.

After law enforcement officers arrived, Simon showed the officers the

videotaped recording from the convenience store’s surveillance cameras. Officers

viewed the videotaped recording from one of the surveillance cameras outside the

store, which showed the complainant being stabbed. Law enforcement officers

also viewed the videotaped recordings from the surveillance cameras inside the

store, which showed the customers who had come into the store before the

stabbing occurred that day. During Simon’s testimony, the trial court admitted into

2
The record shows that the complainant’s name was Brandon Yarbough.
3
Simon explained that the complainant would come to the convenience store almost
every day and he would normally “hang out” in front of the store by himself.

3
evidence still photographs taken from the convenience store’s surveillance

cameras’ videotaped recordings. Those photographs showed a man wearing a blue

shirt with white shoulders, shorts, a Dallas Cowboys baseball cap, tall dark socks,

black shoes, and a backpack walking inside the convenience store. Simon

explained that the man seen in the photographs was a regular customer, who came

into the store almost every day.4 The man usually wore a backpack, and he always

wore shorts and a Dallas Cowboys baseball cap. On the day of the stabbing, the

man came into the convenience store and bought a beer before the stabbing

occurred.

Simon further testified that he continued working his shift at the

convenience store after the stabbing. Later that same day, a law enforcement

officer asked Simon to go to another location about two or three minutes away

from the store. At the location, Simon saw the man who had been wearing the blue

shirt with white shoulders, shorts, a Dallas Cowboys baseball cap, tall dark socks,

black shoes, and a backpack in the convenience store earlier that day. The man

was wearing different clothes, but Simon recognized his face.

Simon signed a “Missouri City Police Department Field Identification

Form,” which was dated June 7, 2019.5 By signing the form, Simon agreed that he

4
Simon noted that the man was not a “problem” customer.
5
A copy of the form was admitted into evidence at trial.

4
had “provided a detailed description of the subject[] involved in th[e] incident to

arriving officer(s) prior to observing any subject(s) which ha[d] been detained as

part of th[e] investigation” and he had “observed a subject[] detained by the

Missouri City Police Department or another Law Enforcement Agency and

positively identified the subject[] as being involved in the . . . incident.” At trial,

Simon identified appellant as the man who had been wearing a blue shirt with

white shoulders, shorts, a Dallas Cowboys baseball cap, tall dark socks, black

shoes, and a backpack inside the convenience store on June 7, 2019.

Missouri City Police Department (“MCPD”) Officer C. Castillo testified that

on June 7, 2019, while on duty, he was dispatched in response to a call about a

stabbing at the Fast Saver Food Store—a convenience store located at 1539 Texas

Parkway, Fort Bend County, Texas. Upon arrival, Castillo saw the complainant

lying on the ground outside the convenience store’s front entrance. The

complainant was lying face down on the store’s front door mat and not moving.

Castillo lifted the complainant’s shirt and “saw blood and stab wounds on [the

complainant’s] back.” Castillo checked to see if the complainant had a pulse and

“tried to get him to respond,” but the complainant was unresponsive. Castillo

noted that he looked around the immediate area and did not see any weapons near

the complainant. And the complainant did not have a weapon in his hand or within

his reach. Emergency medical services personnel arrived soon after Castillo and

5
began attending to the complainant. The complainant was pronounced dead at the

scene.

Office Castillo further testified that, while at the scene, he and other law

enforcement officers viewed videotaped recordings from the convenience store’s

surveillance cameras, which showed the possible stabbing suspect—a man.

Witnesses also noted that they had seen that man “go to the back of the

neighborhood behind” the convenience store down Kenforest Drive after the

stabbing. Castillo searched a portion of the area but did not locate the suspect or

any weapon that had been used in the stabbing of the complainant. Castillo noted

that other law enforcement officers searched the area as well and they did not find

a weapon either.

MCPD Detective D. Spencer testified that on June 7, 2019, he was notified

about a murder that occurred the Fast Saver Food Store, a convenience store on

Texas Parkway in Fort Bend County. When Spencer arrived at the convenience

store, the complainant’s body was still there, but no suspects had been detained at

the scene. Spencer and another law enforcement officer were then directed to

notify certain family members of the complainant “about what had occurred.” The

complainant’s sister lived close to the convenience store, and Spencer and the other

law enforcement officer drove to the complainant’s sister’s home to notify her of

the complainant’s death.

6
After notifying the complainant’s sister of the complainant’s death,

Detective Spencer and the other law enforcement officer began driving back to the

convenience store, when they saw a man walking on Castle Creek Drive—a street

near the convenience store. Spencer stopped and spoke to the man, later identified

as Gerald Foot, because Spencer had received a photograph of the stabbing suspect

from the convenience store’s surveillance cameras’ videotaped recording. Spencer

thought Foot might know the suspect, and Spencer had reason to believe that the

suspect taken had “gone down that direction.” While speaking with Spencer, Foot

seemed like he “would rather be some place else.” Spencer showed Foot a picture

of the man who had been wearing a blue shirt with white shoulders, shorts, a

Dallas Cowboys baseball cap, tall dark socks, black shoes, and a backpack inside

the convenience store on the day of the stabbing, and Foot moved his head to

gesture toward a group home in the neighborhood.

Because it did not appear that Foot was comfortable speaking with Detective

Spencer on the street, Spencer went to Foot’s home to speak with him further. At

his home, Foot showed Spencer a photograph of a man punching a red punching

bag. According to Spencer, the man in Foot’s photograph was the same man who

was in the convenience store on June 7, 2019 wearing a blue shirt with shoulders,

shorts, a Dallas Cowboys baseball cap, tall dark socks, black shoes, and a

backpack. At trial, Spencer identified appellant as the man in Foot’s photograph.

7
Detective Spencer further testified that later on June 7, 2019, he went to the

group home in the neighborhood where Foot had directed him to go. After

additional law enforcement officers arrived at the home, officers spoke with the

home’s owner, who consented to the officers entering the home. Appellant was

found at the group home, but he was wearing different clothing; he was not

wearing a blue shirt with white shoulders, shorts, a Dallas Cowboys baseball cap,

tall dark socks, black shoes, and a backpack.6

A search warrant was subsequently obtained to allow law enforcement

officers to search appellant’s bedroom in the group home. According to Detective

Spencer, in appellant’s bedroom, the clothing—a blue shirt with white shoulders,

shorts, a Dallas Cowboys baseball cap, tall dark socks, and black shoes, which had

been seen on the man in the convenience store—was found.7 A weapon or knife

was not found.

6
When shown a still photograph of the man in the convenience store’s surveillance
videotaped recording, members of the group home identified the man as appellant.
7
The trial court admitted into evidence photographs taken of appellant’s bedroom,
which showed the clothing discovered by law enforcement officers—namely, a
blue shirt with white shoulders, shorts, a Dallas Cowboys baseball cap, tall dark
socks, and black shoes.

8
Detective Spencer also explained that a “field identification”8 was

completed, and Simon, the employee from the convenience store, positively

identified appellant.

As to the actual stabbing, Detective Spencer testified that the complainant

was stabbed twelve times with a sharp object.9 Spencer’s investigation revealed

that the complainant was stabbed while he was beside the convenience store. The

side of the convenience store where the stabbing occurred faced Kenforest Drive—

a street that ran into the surrounding neighborhood. Spencer also noted that the

complainant’s body was found at the front entrance of the convenience store.

Spencer acknowledged that the complainant’s body was not found at the same

location where the stabbing took place. He explained, though, that the store’s front

entrance where the complainant’s body was found was not far from the stabbing

location.

During his testimony, Detective Spencer viewed a videotaped recording

from the convenience store’s outside surveillance camera. Spencer explained that

8
Detective Spencer noted that a field identification was typically done when
“someone [was] detained in a relatively reasonable amount of time after a crime
[was] committed.” During the process, either a complainant or a witness is
“brought [to] where the suspect or person of interest [is] detained,” and the
“person being detained is [then] removed from [a] patrol vehicle.” The
complainant or witness “looks at th[e] person from a few feet away to determine if
[the person detained] is the correct person.”
9
Detective Spencer testified that a knife or sharp object was a deadly weapon that
was capable of causing serious bodily injury or death. A sharp object caused the
complainant’s death.

9
at about 3:35 p.m. on June 7, 2019, appellant can be seen on the videotaped

recording “standing up against [a] brick wall on th[e] sidewalk” beside the

convenience store. At about 3:42 p.m., the complainant walks past appellant; he

does not stop and talk to appellant or say anything to appellant. The complainant

does not appear to be agitated or confrontational with anyone around. Appellant

then can be seen walking to a trash container before returning to his previously

location and standing. At about 3:48 p.m., the complainant looks toward where

appellant is standing and starts walking in appellant’s direction. The complainant

reaches into his waistband and pulls his pants up, and appellant at that same time

runs toward him. Appellant stabs the complainant.10 Spencer noted, while

watching the videotaped recording, that he did not see the complainant display a

weapon, “pull out a weapon,” or “[d]rop a weapon.”11 At about 3:49 p.m.,

appellant starts running away. Although appellant’s baseball cap flies off his head,

he comes back to grab his cap. According to Spencer, shortly before the stabbing,

appellant was inside the convenience store buying a drink, and he can be seen on

the videotaped recording from the store’s inside surveillance camera.

10
The trial court admitted into evidence still photographs taken from the videotaped
recording from convenience store’s outside surveillance camera. Detective
Spencer testified that appellant can be seen with “a cutting instrument” or a sharp
object in his hand in the photographs.
11
Detective Spencer noted that at the medical examiner’s office, a screwdriver was
found in the complainant’s pocket.

10
Detective Spender also explained that he spoke with appellant on June 7,

2019. In appellant’s statement to law enforcement officers, appellant said that he

had gone to the convenience store on June 7, 2019, but he stated that he was there

around 12:30 p.m. Appellant also said that he had been wearing the same clothes

all day—different clothes than those seen on the man in the videotaped recording

from the convenience store’s surveillance cameras. Appellant also denied knowing

the complainant. Appellant did not say that the complainant had threatened him or

that he was afraid of the complainant. Appellant denied having an altercation or

confrontation with anybody on June 7, 2019.

According to Detective Spencer, during his investigation, a person named

Darrell Farley brought a videotaped recording to the MCPD. The videotaped

recording was made on May 29, 2019, and it showed appellant and the

complainant having a fistfight. It did not appear that any weapon or deadly force

was being used at the time. Spencer stated that a couple of times in the videotaped

recording, it looked like appellant was “running and lunging toward[]” the

complainant.12

MCPD Officer B. Motto testified that on June 7, 2019, he was dispatched to

the Fast Saver Food Store, a convenience store on Texas Parkway, because “a

stabbing [had] occurred and the suspect had fled the location.” At the scene, Motto
12
The trial court admitted into evidence a copy of the videotaped recording from
May 29, 2019.

11
was given a description of the suspect, which was a “Black ma[n] . . . with short

hair, blue shirt with white shoulders, tan type fit shorts and black socks pulled up

to his knees and white shoes.” Motto then began searching the surrounding

neighborhood for the suspect.

After Officer Motto was unsuccessful in his search, he returned to the

convenience store. He then searched a trash container near the convenience store

looking for a drink can, which he found. The drink can was collected as evidence.

Officer Motto further testified that he was later asked to go to a group home

in the neighborhood near the convenience store. At the group home, he learned

that appellant was the suspect that law enforcement officers had been looking for

and that appellant was believed to be in or around the home. Motto went into the

backyard of the group home and saw a white man and appellant talking. Motto

confirmed appellant’s name and handcuffed him.

MCPD Officer S. Lane testified that she was a crime scene investigator and

on June 7, 2019, she was called out to a convenience store on Texas Parkway.

After arriving at the scene, Lane observed a blood trail outside the convenience

store. The blood trail went from the side of the convenience store to where the

complainant was lying at the front entrance of the store.

Officer Lane further testified that, while at the scene, she took photographs

of a trash container. According to Lane, the videotaped recording from the

12
convenience store’s surveillance cameras showed the suspect buying a canned

drink in the store, and officers searched the trash container near the store for the

drink can. Lane noted that Officer Motto found the drink can in the trash

container; she photographed it and collected it as evidence.

Later, Officer Lane went to a group home in the surrounding neighborhood

to execute a search warrant. While searching appellant’s bedroom in the group

home, Lane found the same clothing that the suspect was wearing in the

videotaped recording from the convenience store’s surveillance cameras. Lane

noted that the clothing was in the closet in appellant’s bedroom. Lane also found a

backpack in the closet that matched the one worn by the suspect at the convenience

store. According to Lane, she found the Dallas Cowboys baseball cap in

appellant’s closet in a bin with a lid on top. The shoes were found in appellant’s

bedroom under a bed; they had a sheet or a blanket on top of them. Lane collected

the clothing as evidence. Lane also noted that a red punching bag was discovered

in the backyard of the group home, and she photographed it.

Kathleen McKinney testified that she was a section supervisor at the Texas

Department of Public Safety Crime Laboratory in the “biology DNA section.”

Previously, she served as a “lead forensic scientist” at the crime lab in the “biology

DNA section.” As part of her job, she performed DNA analysis and comparison,

and she performed DNA analysis on certain items related to appellant’s case.

13
McKinney testified that she performed a DNA analysis on a pair of shorts that

were taken from appellant’s bedroom in the group home, and she determined that it

was “93.2 octillion times more likely that the DNA that came from the shorts”

belonged to appellant rather than an unknown person. McKinney also performed a

DNA analysis on a swab taken from a “drink can” collected from the convenience

store,13 and she determined that it was “1,670 times more likely” that the DNA that

came from the drink can belonged to appellant rather than an unknown person.

McKinney noted that the probability number for the drink can was lower than the

probability number for the shorts because she was not able to recover a full DNA

profile from the swab taken from the drink can.

The trial court admitted into evidence a copy of the videotaped recording

from one of the convenience store’s outside surveillance cameras. The videotaped

recording is dated June 7, 2019. At about 3:35 p.m., a person can be seen at the

top of the screen either sitting or standing. At about 3:42 p.m., the complainant

walks by the person who is sitting or standing and continues walking down the

sidewalk next to a parking lot, getting closer and closer to the convenience store’s

outside surveillance camera’s location. The complainant is holding a sheet of

13
Jacaranda Solis, a forensic scientist in the “biology DNA section” of the Texas
Department of Public Safety Crime Laboratory who swabbed the drink can,
testified that the drink can came from a trash container outside the convenience
store and she swabbed the opening on the top of the drink can—“where [a person]
would drink out of”—for potential DNA.

14
paper. At about 3:43 p.m., the complainant waves at someone who is off-camera

and continues looking at the piece of paper in his hand. At about 3:44 p.m.,

another man hands the complainant a cigarette, and the complainant walks

off-camera. About forty seconds later, the complainant walks back into the view

of the surveillance camera and continues standing on the sidewalk beside the

convenience store. He is still holding or looking at the piece of paper in his hand.

At about 3:46 p.m., the person at the top of the screen walks toward a trash

container and throws something away before returning to his original sitting or

standing position. That person appears to be a man, and he is wearing a dark

colored shirt with white shoulders, shorts, and dark shoes. The complainant

remains in his same location next to the convenience store, holding and looking at

the piece of paper in his hand. At about 3:48 p.m., the complainant appears to look

toward the man at the top of the screen, and at 3:49 p.m., the complainant starts

walking toward the man. The man then starts walking in the direction of the

complainant. The man runs at the complainant, and they start fighting. The man,

who is now closer to the outside surveillance camera’s location, is wearing a blue

shirt with white shoulders, shorts, a baseball cap, tall dark socks, and black shoes.

During the altercation, the baseball cap that the man was wearing falls off his head

and onto the ground. The man repeatedly stabs the complainant on the left side of

the complainant’s body and back with a sharp object. The man then runs away,

15
and the complainant walks in the opposite direction and goes off-camera. The man

quickly returns to pick up his baseball cap; he also picks up a backpack before

running off again away from the convenience store’s outside surveillance camera.

The complainant wanders back into view of the outside surveillance camera

appearing to be holding the side of his body where he was stabbed.14

The trial court also admitted into evidence the videotaped recordings from

the convenience store’s inside surveillance cameras. Those videotaped recordings

are dated June 7, 2019. At about 2:57 p.m., a man wearing a blue shirt with white

shoulders, shorts, a Dallas Cowboys baseball cap, tall dark socks, black shoes, and

a backpack can be seen entering the convenience store. The man walks to the

refrigerated section of the store and grabs a canned drink. The man then walks

back down an aisle toward the store’s register before paying the store employee for

the canned drink at about 2:58 p.m. At 3:00 p.m., the man exits the convenience

store. The videotaped recording shows the man’s face at certain times while he is

14
The videotaped recording from another one of the convenience store’s outside
surveillance cameras, which shows the front entrance to the convenience store,
was also admitted into evidence. On that videotaped recording, at about 3:49 p.m.,
the complainant can be seen standing on the sidewalk along the side of the
convenience store. He then walks out of the view of the outside surveillance
camera. About thirty seconds later, the complainant stumbles back into the view
of the outside surveillance camera and falls face down at the convenience store’s
front entrance. The complainant continues to lie on his stomach outside the
convenience store’s front entrance; he does not move and appears unresponsive.
At about 3:57 p.m., a law enforcement officer arrives to the scene.

16
in the store. At about 3:49 p.m., the complainant can be seen falling outside the

convenience store’s front entrance.

Ami Murphy, a forensic pathologist, testified that she was a forensic

pathologist and in June 2019, she was working at the Galveston County Medical

Examiner’s Office. Murphy performed an autopsy on the complainant’s body on

June 8, 2019.15 The complainant had several sharp force injuries to his body,

which would have been “caused by some type of sharp object to the body.” The

complainant had twelve sharp force injuries on his torso, left arm, and back. One

of the two most significant injuries penetrated the complainant’s abdominal cavity

into the pelvic area and cut “the left common iliac artery,” which Murphy

explained was “a fairly large sized artery that c[ame] off of the aorta.” This would

have caused blood to pool inside the complainant’s body. The other most

significant injury was on the complainant’s “left mid-back,” and it went “into the

[complainant’s] left chest” and through “the lower lobe of [the complainant’s] left

lung.” It then cut through the complainant’s “pericardial sac, which [was] the sac

that . . . [went] around the [complainant’s] heart.” This would have caused the

complainant’s heart to bleed internally. According to Murphy, the complainant

15
A copy of Murphy’s autopsy report and photographs of the complainant’s autopsy
were admitted into evidence at trial as well as a copy of the complainant’s
toxicology report. Murphy noted that the toxicology report showed that the
complainant was positive for caffeine and “tetrahydrocannabinol which [was] an
active ingredient in marijuana.”

17
had about a liter of blood pooled inside of this body from his injuries. Because the

complainant’s blood pooled inside his body, rather than “spurting out,” the person

who stabbed the complainant may not have gotten blood on himself. Murphy

opined that while the complainant was still conscious, he would have experienced

pain.

Murphy further testified that the cause of the complainant’s death was

“sharp force injuries of the torso and left arm” and the manner of death was

homicide. Murphy explained that during the autopsy certain personal belongings

found on the complainant were collected. Among other items, the complainant had

a small screwdriver, which was “about the same size as [a] dollar bill[].”

Appellant testified that he started living in a group home in Missouri City,

Texas in 2018. Eleven people lived in the group home with appellant. Appellant

noted that he went the convenience store on Texas Parkway on a regular basis.

Appellant also stated that he knew the complainant, but he did not know the

complainant’s real name. Appellant called the complainant “Carrington,” which

was a nickname, and appellant did not think that the complainant minded.

Appellant further explained that, about two months before June 7, 2019, he

met the complainant for the first time at a park. At the park, they talked for about

thirty minutes about the civil rights movement. Appellant and the complainant

would also smoke cigarettes together. According to appellant, when he first met

18
the complainant, the complainant “was a good friend”; “He was an ally.”

Appellant knew that the complainant lived in the same neighborhood as he did, but

he did not know exactly where the complainant lived.

Appellant also testified that about a month before June 7, 2019, he and the

complainant were at the convenience store on Texas Parkway. Appellant saw the

complainant walking toward the store, and he struck up a conversation with the

complainant. During the conversation, appellant received a telephone call about a

callback for a job that he had applied to. Appellant stated that he “sort of gloated

maybe a little too much,” and the complainant got up and walked off while

appellant was on the call. After appellant ended his telephone call, he followed the

complainant and said to the complainant, “Yo, what’s up, Bro? Do you want to

smoke a cigarette with me, you know? Want to drink with me, you know, drink

some soda.” (Internal quotations omitted.) Appellant went to sit beside the

complainant, and the complainant “randomly st[ood] up, like ‘Get the F from

beside me, Bro.’” When appellant asked what the complainant meant, the

complainant “wail[ed] on [appellant] from the right side,” meaning that the

complainant punched appellant on the lip. Appellant then got up and asked, “Why

did you hit me?” (Internal quotations omitted.) But this made the complainant

“want[] to fight [him] even more.” The complainant was “belligerent” and

“charg[ed]” appellant. The complainant threw a beer bottle at appellant’s feet.

19
The bottle did not hit appellant, but it scared him. Appellant then walked off and

went back to the group home. Appellant noted that the complainant did not have a

weapon with him that day. He also stated that he did not tell law enforcement

officers about this incident when he spoke to them following his arrest in this case.

About a week later, appellant saw the complainant outside a store near the

convenience store with “a mallet of some sort.” According to appellant, he was

walking to the convenience store with one of his friends from the group home

when he saw the complainant about fifteen feet away from him with “a tool,”

“holding it up.” Appellant did not want to talk to the complainant, but he did not

feel threatened. And according to appellant, the complainant did not do anything

threatening with the “mallet” that day. Appellant did not tell law enforcement

officers about this incident when he spoke to them after his arrest.

Appellant further noted that about a week or two weeks before June 7 2019,

he and the complainant got into a fight near his group home, which was filmed.

Appellant stated that he was walking down the street when the complainant “cut[]

off [his] . . . walking path.” Appellant thought the complainant wanted to fight

him, although the complainant did not say anything to that effect. Appellant and

the complainant then engaged in “a slap boxing match.” The fight ended with the

complainant spitting in appellant’s face. Appellant then walked off, and the

complainant appeared to chase him down to fight again. Appellant got away.

20
According to appellant, the complainant did not have a weapon on him that day

and appellant was not threatened with a weapon. Appellant noted that he wanted

to fight the complainant, and he was angry that the complainant spat on him.

Additionally, appellant testified that about two weeks before June 7, 2019,

he was standing outside in front of the group home and talking, when he saw the

complainant walking across the street. The complainant “pull[ed] . . . up” a knife

and then “drop[ped] it back in his trousers.” Appellant also stated that he was not

sure if the complainant had a knife, but “it was definitely a weapon.” Appellant

did not call law enforcement officers about the incident because the complainant

was not acting in a threatening manner toward him. According to appellant, the

complainant did not cross the street or come near him.

Appellant also testified that he believed that the complainant had taken his

cellular telephone, but he did not confront the complainant about it. And appellant

noted that there were times before June 7, 2019 when he did not feel that the

complainant was a threat. There were times when the complainant and appellant

would acknowledge each other or have a brief conversation without any problems.

According to appellant, “[i]t[] [was] hard to say why [the complainant] would blow

up like that.”

As to the events of June 7, 2019, appellant testified that he planned to go to

the library to study a math book and to finish his resume, and on the way to the

21
library, he stopped at the convenience store to “pick up some drinks.” Appellant

agreed that he had bought the canned drink that was found by law enforcement

officers in the trash container outside the convenience store. According to

appellant, he stayed around the convenience store to drink the beverage he bought

because he was not allowed to bring it into the library. Appellant stood around

listening to music and drinking. Appellant noted that even after he finished his

drink and threw the canned drink away, he continued to hang out outside the

convenience store.

Appellant further explained that the complainant showed up at the

convenience store about ten or fifteen minutes after he had stepped outside the

store to drink his beverage. Appellant gestured to the complainant to ask if he

wanted to smoke a cigarette. At some point, the complainant came toward

appellant going “full speed.” Appellant then chose to go toward the complainant

instead of running away. Appellant thought that the complainant “must have a gun

on him or something,” and “Navy Seal videos” taught him to “zig-zag toward[]”

the person with a firearm. According to appellant, he had “a little baby knife” on

him, which appellant described as a “straight knife.” Appellant had the knife with

him because he thought that “if anything [went] down,” “it [would not]

be . . . lethal.”

22
Appellant stated that he first punched the complainant three times in his

face, and then stabbed the complainant with the knife because the complainant was

“be[ing] . . . bold.” The complainant’s boldness made appellant think that the

complainant “must have a weapon on him of some sort.” Appellant stabbed him

“so many times” because the complainant did not run away so appellant thought

the complainant might shoot him if he walked away. However, appellant also

noted that he was holding onto the complainant as he stabbed him. Appellant ran

away after he stabbed the complainant.

Additionally, appellant testified that no one else was involved in the

altercation on June 7, 2019 other than himself and the complainant. And he stated

that the complainant did not punch him on June 7, 2019. Further, appellant noted

that the complainant initially walked by appellant and did not do anything to him,

and the complainant did not threaten the complainant with a weapon. Instead, the

complainant stood beside the convenience store and read a paper flyer. Appellant

“chose to fight” the complainant; he could have left the convenience store.

Appellant also admitted that he had never seen the complainant with a firearm

before and he did not know if the complainant could afford one. Appellant “chose

to protect [himself] with a knife,” and he brought the knife with him when he went

to the convenience store, which was the complainant’s regular place to hang out.

23
According to appellant, he left the scene after the stabbing because he did

not think that law enforcement officers “would believe [his] side of the story” and

he was worried that someone else was “going to shoot somebody.” Appellant

stated that he went back to the group home, changed his clothes, and took a shower

because he felt disgusted with himself. Appellant wrapped his clothes up in a bag

and put them in his closet. As for the knife, he “put it in the gutter,” but appellant

could not recall where.

Appellant also testified that on June 7, 2019, he was scared that the

complainant “was coming at [him] with a weapon” and he felt like he needed to

defend himself with a knife. Further, appellant testified that before June 7, 2019,

he was learning to box and there was a red punching bag in the backyard of the

group home. According to appellant, he used the punching bag regularly and

sparred regularly. Appellant denied previously pleading guilty to the offense of

assault.

Sufficiency of Evidence

In his first issue, appellant argues the evidence is legally insufficient to

support his conviction because “the evidence presented by the State failed to prove

that [appellant] was the person in the surveillance video who killed [the

complainant],” “none of the forensic evidence presented in th[e] case linked

24
[appellant] to the [complainant],” and appellant “was never identified by any of the

[three] eyewitnesses present at the time of the assault.”16

We review the legal sufficiency of the evidence by considering all of the

evidence in the light most favorable to the jury’s verdict to determine whether any

“rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Our role is that of a due

process safeguard, ensuring only the rationality of the trier of fact’s finding of the

elements of the offense beyond a reasonable doubt. See Moreno v. State, 755

S.W.2d 866, 867 (Tex. Crim. App. 1988). We defer to the responsibility of the

fact finder to resolve conflicts fairly in testimony, weigh the evidence, and draw

reasonable inferences from the facts. Williams, 235 S.W.3d at 750. That said, our

duty requires us to “ensure that the evidence presented actually supports a

conclusion that the defendant committed” the criminal offense of which he is

accused. Id.

We note that in reviewing the sufficiency of the evidence, a court must

consider both direct and circumstantial evidence and any reasonable inferences that

16
Appellant also frames his first issue in the context of the trial court erring in
denying his motion for directed verdict. A challenge on appeal to the denial of a
motion for directed verdict is a challenge to the legally sufficiency of the evidence.
See Gabriel v. State, 290 S.W.3d 426, 435 (Tex. App.—Houston [14th Dist.]
2009, no pet.).

25
may be drawn from the evidence. See Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.

2012) (evidence-sufficiency standard of review same for both direct and

circumstantial evidence). Circumstantial evidence is just as probative as direct

evidence in establishing the guilt of an actor, and circumstantial evidence alone can

be sufficient to establish guilt. See Clayton, 235 S.W.3d at 778; Hooper v. State,

214 S.W.3d 9, 13 (Tex. Crim. App. 2007). For evidence to be sufficient, the State

need not disprove all reasonable alternative hypotheses that are inconsistent with a

defendant’s guilt. See Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202,

207–08 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). Rather, a court

considers only whether the inferences necessary to establish guilt are reasonable

based on the cumulative force of all the evidence when considered in the light most

favorable to the jury’s verdict. See Wise, 364 S.W.3d at 903; Hooper, 214 S.W.3d

at 13. The jury, as the judge of the facts and credibility of the witnesses, could

choose to believe or not to believe the witnesses, or any portion of their testimony.

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); Jenkins v. State, 870

S.W.2d 626, 628 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).

A person commits the offense of murder if he intentionally or knowingly

causes the death of an individual. See TEX. PENAL CODE ANN. § 19.02(b)(1). A

person also commits the offense of murder if he intends to cause serious bodily

26
injury and commits an act clearly dangerous to human life that causes the death of

an individual.17 See id. § 19.02(b)(2). A person acts intentionally, or with intent,

with respect to the result of his conduct when it is his conscious objective or desire

to engage in the conduct or cause the result. Id. § 6.03(a). A person acts

knowingly, or with knowledge, with respect to a result of his conduct when he is

aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b); see

also Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App. 2003) (“Murder is

a ‘result of conduct’ offense, which means that the culpable mental state relates to

the result of the conduct, i.e., the causing of the death.”). “‘Serious bodily injury’

means bodily injury that creates a substantial risk of death or that causes death,

serious permanent disfigurement, or protracted loss or impairment of the function

of any bodily member or organ.” TEX. PENAL CODE ANN. § 1.07(a)(46).

“Intent is almost always proven by circumstantial evidence.” Trevino v.

State, 228 S.W.3d 729, 736 (Tex. App.—Corpus Christi–Edinburg 2006, pet.

ref’d); see also Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (“Direct

17
Here, the indictment alleged that appellant committed the offense of murder under
both theories, and the trial court instructed the jury accordingly. See TEX. PENAL
CODE ANN. § 19.02(b)(1), (2). In response to the trial court’s charge, the jury
returned a general verdict of guilty. When a trial court submits alternative theories
of conviction to the jury, and the jury returns a general verdict, we will uphold the
verdict if the evidence is sufficient to support any one of the alternative theories.
See Sorto v. State, 173 S.W.3d 469, 472 (Tex. Crim. App. 2005); see also Hollins
v. State, Nos. 01-14-00744-CR, 01-14-000745-CR, 2015 WL 5076298, at *4 (Tex.
App.—Houston [1st Dist.] Aug. 27, 2015, pet. ref’d) (mem. op., not designated for
publication).

27
evidence of the requisite intent is not required . . . .”); Smith v. State, 56 S.W.3d

739, 745 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d). “A jury may infer

intent from any facts which tend to prove its existence, including the acts, words,

and conduct of the accused, and the method of committing the crime, and from the

nature of wounds inflicted on the victim[].” Trevino, 228 S.W.3d at 736. A jury

may also infer knowledge from such evidence. See Stahle v. State, 970 S.W.2d

682, 687 (Tex. App.—Dallas 1998, pet. ref’d); Martinez v. State, 833 S.W.2d 188,

196 (Tex. App.—Dallas 1992, pet. ref’d). In determining a defendant’s guilt, a

jury may consider events that occur before, during, and after the commission of an

offense. See Pitonyak v. State, 253 S.W.3d 834, 844–45 (Tex. App.—Austin 2008,

pet. ref’d); Martin v. State, 151 S.W.3d 236, 245 (Tex. App.—Texarkana 2004,

pet. ref’d); see also King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000)

(jury may consider evidence showing consciousness of guilt).

The evidence presented at trial shows that the complainant’s body was found

lying outside the front entrance of a convenience store located on Texas Parkway

in Fort Bend County. Simon, an employee of the convenience store, testified that

he saw, through the monitor for the store’s outside surveillance cameras, the

complainant get stabbed before ultimately collapsing outside the store’s front

entrance. Simon went outside to check on the complainant, but the complainant

was unresponsive. When Officer Castillo arrived at the scene, he found the

28
complainant’s body lying on the ground face down outside the convenience store’s

front entrance; the complainant was not moving and unresponsive. Castillo lifted

the complainant’s shirt and “saw blood and stab wounds” on the complainant’s

body. The complainant was pronounced dead at the scene.

Detective Spencer, who investigated the stabbing, explained that the

complainant was stabbed twelve times with a sharp object. According to Spencer,

the stabbing occurred while the complainant was outside and next to the

convenience store. While watching the videotaped recording from one of the

convenience store’s outside surveillance cameras, Spencer explained that the

recording showed that at about 3:35 p.m. on June 7, 2019, appellant was “standing

up against [a] brick wall on th[e] sidewalk” beside the convenience store. At about

3:42 p.m., the complainant walked past appellant; he did not stop and talk to

appellant or appear to say anything to appellant. The complainant did not appear

to be agitated or confrontational with anyone around. Appellant then walked to a

trash container, which was also beside the convenience store, before returning to

his previous location and resuming standing. At about 3:48 p.m., the complainant

looked toward where appellant was standing and started walking in appellant’s

direction. The complainant reached into his waistband and pulled his pants up

while appellant ran toward him. Appellant stabbed the complainant with “a cutting

instrument” or a sharp object, which was in appellant’s hand. At about 3:49 p.m.,

29
after stabbing the complainant, appellant started to run away from the scene, but

returned to pick up his baseball cap which had flown off his head during the

stabbing.

Additionally, the videotaped recording from one of the convenience store’s

outside surveillance cameras, which the trial court admitted into evidence, showed

that at about 3:35 p.m., a person was either sitting or standing on the sidewalk

beside the convenience store. At about 3:42 p.m., the complainant walked by the

person who was sitting or standing and continued walking down the sidewalk,

getting closer and closer to the outside surveillance camera’s location. The

complainant was holding a sheet of paper. At about 3:43 p.m., the complainant

waved at someone who was off-camera and continued looking at the piece of paper

in his hand. At about 3:44 p.m., another man handed the complainant a cigarette,

and the complainant walked off-camera. About forty seconds later, the

complainant walked back into the view of the surveillance camera and continued

standing on the sidewalk holding or looking at the piece of paper in his hand. At

about 3:46 p.m., the person at the top of the screen walked toward a trash

container, which was along the side of the convenience store, and threw something

away before returning to location where he was previously sitting or standing. The

person in the videotaped recording was a man wearing a dark colored shirt with

white shoulders, shorts, and dark shoes. While this occurred, the complainant

30
remained in his same location, holding and looking at the piece of paper in his

hand. At about 3:48 p.m., the complainant appeared to look toward the man

wearing a dark colored shirt with white shoulders, and at 3:49 p.m., the

complainant started walking toward the man. The man also started walking in the

direction of the complainant. The man then ran at the complainant, and they

started to struggle. The man, who got closer to the convenience store’s outside

surveillance camera’s location during the struggle, was wearing a blue shirt with

white shoulders, shorts, tall dark socks, black shoes, and a baseball cap. His

baseball cap fell off during the struggle. The man repeatedly stabbed the

complainant on the left side of the complainant’s body and back with a sharp

object. The man then ran away, and the complainant walked in the opposite

direction off-camera. The man quickly returned to pick up his baseball cap which

was on the ground; he also picked up a backpack. The complainant wandered back

into view of the outside surveillance camera appearing to be holding the side of his

body where he was stabbed.18 After picking up his baseball cap, the man ran away

in the opposite direction as the complainant and the convenience store. See Clay v.

18
The videotaped recording from another outside surveillance camera showing the
front entrance to the convenience store was also admitted into evidence. On that
videotaped recording, at about 3:49 p.m., the complainant can be seen standing on
the sidewalk beside the convenience store. He then walks out of the view of the
outside surveillance camera. About thirty seconds later, the complainant stumbles
back into the view of the outside surveillance camera and falls face down outside
the convenience store’s front entrance. The complainant continues to lie on his
stomach in front of the entrance door, not moving and not responding.

31
State, 240 S.W.3d 895, 905 n.11 (Tex. Crim. App. 2007) (“Evidence of flight

evinces a consciousness of guilt.”); In re J.A.B., 440 S.W.3d 818, 823 (Tex.

App.—El Paso 2013, no pet.) (“Evidence of flight is indicative of a consciousness

of guilt[,] and it is a circumstance from which an inference of guilt may be

drawn.”).

Murphy, who performed the autopsy on the complainant’s body, testified

that the complainant had twelve sharp force injuries on his torso, left arm, and back

which would have been “caused by some type of sharp object to the body.” One of

the two most significant injuries penetrated the complainant’s abdominal cavity

into the pelvic area and cut the complainant’s “left common iliac artery,” which

Murphy explained was “a fairly large sized artery that c[ame] off of the aorta.”

That would have caused blood to pool inside the complainant’s body. The other

most significant injury was on the complainant’s “left mid-back,” and it went “into

the [complainant’s] left chest” and through “the lower lobe of [the complainant’s]

left lung.” It then cut through the complainant’s “pericardial sac, which [was] the

sac that . . . [went] around the [complainant’s] heart.” That caused the

complainant’s heart to bleed internally. According to Murphy, the complainant

had about a liter of blood pooled inside of his body from the sharp force injuries.

While the complainant was still conscious, he would have experienced pain.

32
Murphy testified that the cause of the complainant’s death was the sharp force

injuries.

The evidence presented at trial supports a finding that someone intentionally

or knowingly caused the death of the complainant or that someone intended to

cause serious bodily injury to the complainant and committed an act clearly

dangerous to human life that caused the death of the complainant.19 See TEX.

PENAL CODE ANN. § 19.02(b)(1), (2); see also Nisbett v. State, 552 S.W.3d 244,

267 (Tex. Crim. App. 2018) (“The defendant’s culpable mental state may . . . be

inferred from the extent of the [complainant’s] injuries.”).

Appellant first argues that the evidence is legally insufficient to show that he

was the person who intentionally or knowingly caused the death of the

complainant or the person who intended to cause serious bodily injury to the

complainant and committed an act clearly dangerous to human life that caused the

death of the complainant because no eyewitnesses testified that they saw appellant

stab the complainant. However, eyewitness testimony is not necessary to support a

conviction for the offense of murder, and the lack of eyewitness testimony does not

render the evidence in this case insufficient. See Nisbett, 552 S.W.3d at 262, 268

(holding evidence sufficient to establish defendants committed offense of murder

19
The jury need not unanimously agree on the manner or the means of the
commission of the complainant’s murder. See Sanchez v. State, 376 S.W.3d 767,
773–74 (Tex. Crim. App. 2012); Ngo v. State, 175 S.W.3d 738, 746 n.27 (Tex.
Crim. App. 2005).

33
even though there were no eyewitnesses); Gardner v. State, 306 S.W.3d 274, 285–

86 (Tex. Crim. App. 2009) (rejecting defendant’s argument evidence was

insufficient to prove beyond reasonable doubt that he was shooter because no

eyewitness could affirmatively put him at scene); Curry v. State, No.

01-19-00942-CR, 2021 WL 2793473, at *3 (Tex. App.—Houston [1st Dist.] July

6, 2021, pet. ref’d) (mem. op.) (“[N]either eyewitness testimony nor DNA

evidence is necessary to support a conviction for murder.”); Finley v. State, 529

S.W.3d 198, 203–05 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (rejecting

defendant’s argument that no reasonable jury could have found him guilty of

offense of murder because State “did not present any evidence from a witness who

actually saw who killed [the complainant]”); see also Guevara v. State, 152

S.W.3d 45, 49 (Tex. Crim. App. 2004) (“[T]he lack of direct evidence is not

dispositive of the issue of a defendant’s guilt.”). As previously noted,

circumstantial evidence is just as probative as direct evidence in establishing guilt,

and circumstantial evidence alone can be sufficient to establish guilt. See Clayton,

235 S.W.3d at 778; Hooper, 214 S.W.3d at 13.

Here, the videotaped recording from the one of the surveillance cameras

outside the convenience store, which the trial court admitted into evidence, showed

a man wearing a blue shirt with white shoulders, shorts, a baseball cap, tall dark

socks, and black shoes stabbing the complainant. After stabbing the complainant

34
and before leaving the scene, the man picked up a backpack. Further, the

videotaped recording from the surveillance cameras inside the convenience store,

which the trial court also admitted into evidence, showed a man inside the

convenience store wearing a blue shirt with white shoulders, shorts, a Dallas

Cowboys baseball cap, tall dark socks, black shoes, and a backpack buying a drink

can before the stabbing occurred.20

After the stabbing, Foot, who was walking on a street near the convenience

store, was shown a photograph of the man who had been wearing a blue shirt with

white shoulders, shorts, a Dallas Cowboys baseball cap, tall dark socks, black

shoes, and a backpack inside the convenience store, and he directed Detective

Spencer to a group home. Foot also provided Spencer with a photograph of the

same man seen on the convenience store’s surveillance cameras’ videotaped

recordings, and Spencer, at trial, identified appellant as the man in Foot’s

photograph.

20
Multiple law enforcement officers testified that they were able to recover the drink
can from a trash container beside the convenience store, and the drink can was
photographed and collected as evidence. McKinney performed a DNA analysis on
a swab taken from the opening on the top of the drink can, and she determined that
it was “1,670 times more likely” that “the DNA [on the drink can] came from”
appellant rather than an unknown person. See, e.g., Allen v. State, Nos.
05-11-00056-CR, 05-11-00057-CR, 2012 WL 2106530, at *2 (Tex. App.—Dallas
June 12, 2012, pet. ref’d) (mem. op., not designated for publication) (State can
prove identity through circumstantial evidence, including DNA).

35
Further, when law enforcement officers went to the group home after the

stabbing, members of the group home identified appellant by name when being

shown a still photograph from the convenience store’s surveillance cameras’

videotaped recordings. And both Detective Spencer and Officer Lane testified that

a blue shirt with white shoulders, shorts, a Dallas Cowboys baseball cap, tall dark

socks, and black shoes were found in the closet in appellant’s bedroom in the

group home and under appellant’s bed; some of the items also appeared to have

been hidden. See Merlan v. State, No. 05-15-00827-CR, 2016 WL 6462396, at *3

(Tex. App.—Dallas Oct. 31, 2016, no pet.) (mem. op., not designated for

publication) (defendant’s action in hiding bag containing firearm and ammunition

indicated consciousness of guilt); Sustaita v. State, No. 14-09-00060-CR, 2010 WL

3418247, at *4 (Tex. App––Houston [14th Dist.] Aug. 31, 2010, pet. ref’d) (mem.

op., not designated for publication) (holding defendant’s flight from scene of

purported suicide and hiding of firearm were consistent with finding of guilt);

Mendoza v. State, No. 01-99-00622-CR, 2001 WL 278686, at *3 (Tex. App.—

Houston [1st Dist.] Mar. 22, 2001, no pet.) (not designated for publication) (“The

jury could have believed that hiding evidence indicated a consciousness of guilt.”).

The trial court admitted into evidence photographs taken of appellant’s

bedroom in the group home which showed the clothing discovered by law

enforcement officers. See Turner v. State, 414 S.W.3d 791, 798–99 (Tex. App.—

36
Houston [1st Dist.] 2013) (noting clothing matching description of what

perpetrator wore while committing offense discovered in defendant’s room), aff’d

as modified, 443 S.W.3d 128 (Tex. Crim. App. 2014); Brown v. State, 212 S.W.3d

851, 865 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (explaining

circumstantial evidence discovered in defendant’s truck and motel room linked

defendant to offense).

Further, McKinney testified that she performed a DNA analysis on the pair

of shorts that were taken from appellant’s bedroom, and she determined that it was

“93.2 octillion times more likely that the DNA that came from the shorts”

belonged to appellant rather than an unknown person. Circumstantial evidence

that the defendant was the person who caused the complainant’s death is sufficient

to support a conviction for the offense of murder. See Stone v. State, 635 S.W.3d

763, 767 (Tex. App.—Houston [14th Dist.] 2021, pet. ref’d) (“Identity may be

proven through direct or circumstantial evidence, and through inferences.”);

Monroy-Pena v. State, No. 14-19-00129-CR, 2021 WL 786553, at *5 (Tex.

App.—Houston [14th Dist.] Mar. 2, 2021, pet. ref’d) (mem. op., not designated for

publication).

Appellant next argues that the evidence is legally insufficient to show that he

was the person who intentionally or knowingly caused the death of the

complainant or the person who intended to cause serious bodily injury to the

37
complainant and committed an act clearly dangerous to human life that caused the

death of the complainant because there was a lack of “DNA evidence” to implicate

appellant. But DNA evidence is not required to obtain a conviction for the offense

of murder. See Pena v. State, 441 S.W.3d 635, 641–42 (Tex. App.—Houston [1st

Dist.] 2014, pet. ref’d) (“The absence of DNA or fingerprint evidence at trial does

not render the other evidence insufficient to support the conviction.”); see also

Curry, 2021 WL 2793473, at *3 (“[N]either eyewitness testimony nor DNA

evidence is necessary to support a conviction for murder.”). And a lack of physical

or forensic evidence tying a defendant to a murder scene is only a factor for the

jury to consider in weighing the evidence. See Lee v. State, 176 S.W.3d 452, 458

(Tex. App.—Houston [1st Dist.] 2004), aff’d, 206 S.W.3d 620 (Tex. Crim. App.

2006); see also Sample v. State, No. 05-19-01254-CR, 2021 WL 3042670, at *11–

12 (Tex. App.—Dallas July 19, 2021, no pet.) (mem. op., not designated for

publication) (holding evidence sufficient to support defendant’s murder conviction

despite fact that State offered no forensic evidence linking defendant to murder);

Cuellar v. State, No. 08-18-00133-CR, 2021 WL 2184512, at *6–7 (Tex. App.—El

Paso May 28, 2021, no pet.) (not designated for publication) (holding evidence

sufficient to support capital murder conviction even though defendant argued no

physical evidence connected him to murder scenes). Notably, “[t]he mere absence

38
of DNA . . . evidence does not affect the legal sufficiency of the evidence actually

introduced at trial.” Pena, 441 S.W.3d at 641–42.

Finally, appellant argues that the evidence is legally insufficient to show that

he was the person who intentionally or knowingly caused the death of the

complainant or the person who intended to cause serious bodily injury to the

complainant and committed an act clearly dangerous to human life that caused the

death of the complainant because the evidence does not “support the allegation that

[appellant] was the person . . . in the surveillance video stabbing [the

complainant].” Here, the jury viewed the videotaped recording from the one of the

convenience store’s outside surveillance cameras which showed the complainant

being stabbed by a man in a blue shirt with white shoulders, shorts, a baseball cap,

tall dark socks, black shoes, and a backpack. The jury also viewed the videotaped

recordings from the convenience store’s inside surveillance cameras which showed

the same man inside the convenience store before the stabbing. The jury was then

able to compare the man in the surveillance cameras’ videotaped recordings to

appellant in court. See, e.g., Harlan v. State, No. 06-14-00236-CR, 2015 WL

5158457, at *5 (Tex. App.—Texarkana Sept. 3, 2015, pet. ref’d) (mem. op., not

designated for publication) (“The jury was able to view the gunman from several

angles from the convenience store’s video surveillance recordings. . . . [T]he jury

was able to visualize the gunman’s build and mannerisms . . . and could compare

39
the gunman’s build to [the defendant’s build at trial].”); Perales v. State, No.

02-13-00458-CR, 2014 WL 3778275, at *2 (Tex. App.—Fort Worth July 31, 2014,

no pet.) (mem. op., not designated for publication) (evidence sufficient to identify

defendant as perpetrator where jury could compare videotaped recording from

surveillance camera with defendant’s in-court appearance to determine identity);

Harrison v. State, No. 14-10-00254-CR, 2011 WL 5589532, at *12 (Tex. App.—

Houston [14th Dist.] Nov. 17, 2011, no pet.) (mem. op., not designated for

publication) (holding evidence sufficient to support jury’s finding that defendant

was perpetrator of offense where jury “viewed the video [of the offense] and the

many still photos created from the video footage” and “jury was capable of making

an assessment of the quality of the images and comparing the images to

[defendant] at trial”).

Viewing all of the evidence presented at trial in the light most favorable to

the jury’s verdict, we conclude that a rational trier of fact could have found beyond

a reasonable doubt that appellant intentionally or knowingly caused the death of

the complainant or appellant intended to cause serious bodily injury to the

complainant and committed an act clearly dangerous to human life that caused the

death of the complainant. See TEX. PENAL CODE ANN. § 19.02(b)(1), (2).

Accordingly, we hold that the evidence is legally sufficient to support appellant’s

conviction for the offense of murder.

40
We overrule appellant’s first issue.

Impeachment by Prior Conviction

In his second issue, appellant argues that the trial court erred in denying his

motion to testify free of impeachment by prior convictions because appellant’s

“prior family violence conviction” “had no probative value in the present case and

was highly prejudicial.”

We review a trial court’s ruling on the admission of evidence for an abuse of

discretion. Tillman v. State, 354 S.W.3d 425, 435 (Tex. Crim. App. 2011); Walker

v. State, 321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d);

see also Moore v. State, No. 01-18-00893-CR, 2020 WL 97175, at *4 (Tex.

App.—Houston [1st Dist.] Jan. 9, 2020, pet. ref’d) (mem. op., not designated for

publication) (noting appellate court reviews trial court’s decision to admit

impeachment evidence under Texas Rule of Evidence 609 for abuse of discretion).

A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without

reference to any guiding rules or principles. Montgomery v. State, 810 S.W.2d

372, 380 (Tex. Crim. App. 1990). When considering a trial court’s decision to

admit evidence, we will not reverse the trial court’s ruling unless it falls outside the

“zone of reasonable disagreement.” Green v. State, 934 S.W.2d 92, 102 (Tex.

Crim. App. 1996) (internal quotations omitted). We will uphold a trial court’s

41
evidentiary ruling if it is correct on any theory of law applicable to that ruling. De

La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

Evidence of a witness’s prior conviction may be admitted for purposes of

impeachment if the crime was a felony or a crime of moral turpitude, and the court

determines that the probative value of admitting the evidence of the conviction

outweighs its prejudicial effect. TEX. R. EVID. 609(a). The Texas Court of

Criminal Appeals has set out a list of non-exclusive factors that courts should use

to weigh the probative value of a conviction against its prejudicial effect. See

Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992). Such factors

include: (1) the impeachment value of the prior crime, (2) the temporal proximity

of the past crime relative to the charged offense and the witness’s subsequent

criminal history, (3) the similarity between the past crime and the charged offense,

(4) the importance of the witness’s testimony, and (5) the importance of the

witness’s credibility. Id.

Appellant, in his briefing, complains that the trial court “permitted the State

to offer into evidence a prior family violence conviction wherein [it] stated that

[appellant] bum-rushed [a] woman from behind.” On direct examination,

appellant’s counsel asked appellant: “Back on May 7th of 2018, in the County

Court of Waller County, were you convicted of assault in Cause No. CC18-300?”

The following exchange then occurred:

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[Appellant:] I’m not sure about the legal jargon.

[Appellant’s counsel:] But were you convicted of assault?

[Appellant:] I honestly can’t recall if I was
convicted or if it was off the record.
I’m not sure. Honest to God truth.

[Appellant’s counsel:] Okay. If I had a piece of paper that
says you were convicted of assault,
would it be lying?

[Appellant:] If it’s stamped by the State of Texas, I
would believe you.

Subsequently, on cross-examination, the State asked appellant:

[State:] The assault that your lawyer asked
you about that you said you don’t
remember whether you’re convicted
of or not --

[Appellant:] Correct.

[State:] -- that was actually something where
you bum-rushed a woman from
behind and assaulted her, right?

....

[Appellant:] Absolutely, never ever in my life
bum-rushed a woman from
behind . . . my ex-girlfriend, which I
never bruised her so bad she had to
report it. I would never in my life
bum-rush a woman. Ever. Wasn’t
raised to be that type of man.

[State:] Okay. So you’re denying that
occurred?
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[Appellant:] Absolutely denying it.

[State:] And you’re denying that you stood up
in a court of law and pled guilty to
that?

[Appellant:] To that, pleading guilty to that, yes,
ma’am. I did not plead guilty to
assaulting a woman, unless it was
hidden somewhere in the fine print,
which Waller County is known to
do --

Here, we will presume, without deciding, that the trial court erred in

admitting the complained-of evidence of appellant’s prior conviction. But even if

we were to make such a presumption, we must still perform a harm analysis to

determine if the trial court’s purported error requires reversal of the trial court’s

judgment. See Petriciolet v. State, 442 S.W.3d 643, 653–55 (Tex. App.—Houston

[1st Dist.] 2014, pet. ref’d) (even if trial court improperly admitted evidence,

appellate court must still determine whether defendant was harmed by erroneous

admission).

The erroneous admission of evidence constitutes non-constitutional error.

Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010); Solomon v. State, 49

S.W.3d 356, 365 (Tex. Crim. App. 2001). Non-constitutional error requires

reversal only if it affects the substantial rights of the defendant. See TEX. R. APP.

P. 44.2(b); Barshaw v. State, 342 S.W.3d 91, 93–94 (Tex. Crim. App. 2011). A

44
defendant’s substantial rights are affected “when the error had a substantial and

injurious effect or influence in determining the jury’s verdict.” King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997). We will not overturn a criminal

conviction for non-constitutional error if, after examining the record, we have fair

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

Barshaw, 342 S.W.3d at 93–94.

We review the entire record to determine the effect or influence of the

wrongfully admitted evidence on the jury’s decision. Id.; Motilla v. State, 78

S.W.3d 352, 355–56 (Tex. Crim. App. 2002). In assessing the likelihood that the

jury’s decision was improperly influenced, we consider the testimony and physical

evidence, the nature of the evidence supporting the verdict, and the character of the

alleged error and how it might be considered in connection with other evidence in

the case. Barshaw, 342 S.W.3d at 94; Motilla, 78 S.W.3d at 355–56. The weight

of evidence of the defendant’s guilt is also relevant in conducting the harm

analysis. Neal v. State, 256 S.W.3d 264, 285 (Tex. Crim. App. 2008); see also

Motilla, 78 S.W.3d at 355–60. And we may consider closing statements and voir

dire, jury instructions, the State’s theory, any defensive theories, and whether the

State emphasized the alleged error. Motilla, 78 S.W.3d at 355–56; Hankins v.

State, 180 S.W.3d 177, 182 (Tex. App.—Austin 2005, pet. ref’d).

45
Appellant, in his briefing, fails to conduct a harm analysis under Texas Rule

of Appellate Procedure 44.2(b) to show that he was harmed by the admission of the

complained-of prior conviction evidence. See, e.g., Cardenas v. State, 30 S.W.3d

384, 393 (Tex. Crim. App. 2000) (holding defendant waived complaint on appeal

because he inadequately briefed issue by failing to address whether alleged error

was harmless); Chaves v. State, 630 S.W.3d 541, 556–58 (Tex. App.—Houston

[1st Dist.] 2021, no pet.) (holding defendant waived complaint trial court erred in

admitting certain evidence because he “failed to adequately brief his assertion that

he was harmed by the admission of” complained-of evidence); Wilson v. State, 473

S.W.3d 889, 900–01 (Tex. App.—Houston [1st Dist.] 2015, pet. ref’d) (“Here, we

do not address whether the trial court erred in admitting the

complained-of . . . evidence because even were we to conclude that the trial court

erred in admitting [the] evidence, appellant, in his brief, does not argue that he was

harmed by its admission.”).

To assert an issue on appeal, an appellant’s brief must contain “a clear and

concise argument for the contentions made, with appropriate citations to authorities

and to the record.” TEX. R. APP. P. 38.1(i). An appellant waives an issue on appeal

if he does not adequately brief that issue by not providing supporting arguments,

substantive analysis, and appropriate citations to authorities and to the record. See

id.; Lucio v. State, 351 S.W.3d 878, 896–97 (Tex. Crim. App. 2011); Busby v.

46
State, 253 S.W.3d 661, 673 (Tex. Crim. App. 2008); Chaves, 630 S.W.3d at 555,

557–58. As the Texas Court of Criminal Appeals has emphasized, an appellate

court has no obligation to construct and compose issues, facts, and arguments with

appropriate citations to authorities and the record for the appellant. See Wolfe v.

State, 509 S.W.3d 325, 342–43 (Tex. Crim. App. 2017); Busby, 253 S.W.3d at

673; see also Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“We

will not make appellant’s arguments for him . . . .”).

In his briefing, appellant makes two general statements as to harm related to

the prior conviction evidence about which he complains: (1) “The trial court’s

admission of the prior family violence charge . . . caused harm to [appellant]”; and

(2) “The trial court erred by . . . admitting that conviction, causing great harm to

[appellant].” But appellant’s brief contains no argument, substantive analysis, or

citation to authorities to show that he was harmed by the trial court’s purported

erroneous admission of the complained-of prior conviction evidence. See Wyatt,

23 S.W.3d at 23 n.5 (“We will not make appellant’s arguments for him . . . .”); see

also Wilson v. State, No. 01-22-00361-CR, 2024 WL 86505, at *7–11 (Tex.

App.—Houston [1st Dist.] Jan. 9, 2024, pet. ref’d) (mem. op., not designated for

publication) (although appellant argued that trial court erred in admitting certain

testimony, holding complaint waived because appellant’s brief contained no

argument, substantive analysis, or citation to authorities to show that he was

47
harmed by purported erroneous admission of testimony). Accordingly, we hold

that appellant waived, due to inadequate briefing, his complaint that the trial court

erred in allowing evidence of his prior conviction to be admitted at trial. See, e.g.,

Cardenas, 30 S.W.3d at 393 (holding issue inadequately briefed where “appellant

d[id] not address the question of whether the alleged error . . . was harmless”);

Chaves, 630 S.W.3d at 557–58; Wilson, 473 S.W.3d at 900–01.

Conclusion

We affirm the judgment of the trial court.

Julie Countiss
Justice

Panel consists of Justices Landau, Countiss, and Guerra.

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10511365. Public record. Not legal advice.