Keith Demont McCuin A/K/A Keith McCuin v. State

02-10-018-CR

COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00018-CR

Keith Demont McCuin a/k/a Keith McCuin

APPELLANT

V.

The State of Texas

STATE

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FROM Criminal

District Court No. 1 OF Tarrant COUNTY

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MEMORANDUM

OPINION [1]

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I. I ntroduction

In

six issues, Appellant Keith Demont McCuin a/k/a Keith McCuin appeals his

conviction for capital murder. We will affirm.

II. B ackground

On

the night of November 22, 2008, McCuin shot and killed Rodney Ryan at a self-service

car wash located in Fort Worth. A nearby liquor store’s surveillance camera

captured images of McCuin, his Cadillac, and his twin brother, Kevin, on video

from the night of the offense. [2] After releasing the

surveillance footage to the media, investigators developed McCuin as a suspect,

arrested him, and collected a DNA sample from him. Authorities investigating

the homicide never found the $500 in cash that Ryan’s employer had given Ryan

before he was last seen or a red backpack that he “always” carried, but they

did learn that DNA discovered in the front pocket of Ryan’s jeans was

consistent with McCuin’s DNA. McCuin pleaded not guilty to the offense of

capital murder, [3] but a jury convicted him

of that offense, and the trial court sentenced him to life imprisonment without

parole. [4]

III. E videntiary S ufficiency —I ntent

to C ommit R obbery

In

his first and second issues, McCuin argues that the evidence is legally and

factually insufficient to show that he committed capital murder because “there

was insufficient evidence to establish that [he] intended to rob the victim,

rather than merely to kill him.” McCuin thus does not challenge the

sufficiency of the evidence to show that he murdered Ryan.

The

court of criminal appeals has held that there is no meaningful distinction

between the legal sufficiency standard and the factual sufficiency standard. Brooks

v. State , 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (overruling Clewis

v. State , 922 S.W.2d 126 , 131–32 (Tex. Crim. App. 1996)). The Jackson

standard is the “only standard that a reviewing court should apply in

determining whether the evidence is sufficient to support each element of a

criminal offense that the State is required to prove beyond a reasonable doubt.”

Id. Therefore, we overrule McCuin’s second issue challenging the

factual sufficiency of the evidence.

In

our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the

prosecution 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, 319 , 99 S. Ct. 2781, 2789 (1979); Clayton

v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard gives

full play to the responsibility of the trier of fact to resolve conflicts in

the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts. Jackson , 443 U.S. at 319 , 99 S. Ct.

at 2789 ; Clayton , 235 S.W.3d at 778 .

A

person commits capital murder if he commits murder in the course of committing

or attempting to commit robbery. Tex. Penal Code Ann. § 19.03 (a)(2) (West

2011). A person commits robbery “if, in the course of committing theft . . .

and with intent to obtain or maintain control of the property, he (1) intentionally,

knowingly, or recklessly causes bodily injury to another; or (2) intentionally

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

death.” Id. § 29.02(a) (West 2011). A person commits theft if he

unlawfully appropriates property with the intent to deprive the owner of it. Id.

§ 31.03(a) (West 2011).

The

court of criminal appeals has defined “in the course of committing” an offense

as conduct occurring in an attempt to commit, during the commission of, or in

the immediate flight after the attempt or commission of the robbery. Lincecum

v. State , 736 S.W.2d 673, 680 (Tex. Crim. App. 1987), cert. denied ,

486 U.S. 1061 (1988). When a person is charged with committing murder in the

course of committing a robbery, “[e]vidence is sufficient to support a capital

murder conviction if it shows an intent to obtain or maintain control of

property which was formed before or contemporaneously with the murder.”

Shuffield v. State , 189 S.W.3d 782, 791 (Tex. Crim. App.), cert.

denied , 549 U.S. 1056 (2006); Armstrong v. State , No. AP-75706, 2010

WL 359020 , at *3 (Tex. Crim. App. Jan. 27, 2010) (not designated for

publication). The State does not have to prove “that the appellant completed

the theft of the victim in order to establish the underlying offense of robbery

or attempted robbery.” Young v. State , 283 S.W.3d 854, 862 (Tex. Crim.

App.), cert. denied , 130 S. Ct. 1015 (2009). Rather, if there is

evidence from which the jury rationally could conclude beyond a reasonable

doubt that the defendant formed the intent to obtain or maintain control of the

victim’s property either before or during the commission of the murder, then

the State has proven that the murder occurred in the course of robbery. Alvarado

v. State , 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). The jury may infer

the requisite intent to rob from circumstantial evidence, including the conduct

of the defendant. Id. ; see Young , 283 S.W.3d at 862 .

The

evidence demonstrates that Ryan died from a gunshot wound to the chest. Although

the car wash is located just “next door” to the liquor store, approximately

ninety seconds elapsed between the time that a patron leaving the liquor store

heard a gunshot and the time that Appellant ran from the car wash to the

Cadillac, according to the surveillance footage. Both Ryan’s sister and his

employer testified that Ryan “always” carried a red backpack with him, but the

backpack was not discovered at the scene or ever returned to his sister.

Ryan’s employer, Matthew Tago, testified that Ryan worked the day of the

offense, that Ryan was still at work when Tago left the office between 6:00 and

6:30 p.m., that Ryan had said that he wanted to wash his car, and that Tago

gave Ryan $500 cash, which Ryan put in his shirt pocket. Authorities did not

find the $500. DNA discovered in the front pocket of Ryan’s jeans was

consistent with McCuin’s DNA; the DNA profile excluded 99.88% of African-Americans.

Medical personnel found Ryan’s driver’s license identification card on the

ground. Demarcus Penix told police that McCuin had told him that McCuin “tried

to jack a guy and had to knock him out.” Penix also told Eric Holder that

McCuin had told Penix that McCuin “approached [Ryan] to rob him, he just wanted

an easy take.”

McCuin

argues that the presence of his DNA in Ryan’s pocket could be a result of “many

possibilities,” not just that he had the intent to rob Ryan. But McCuin’s

argument is unpersuasive because “[c]ourts and juries no longer face the

difficult task of excluding every reasonable hypothesis other than the

defendant’s guilt.” See Laster v. State , 275 S.W.3d 512 , 520–21

(Tex. Crim. App. 2009) (explaining abolition of reasonable hypothesis test); Wilson

v. State , 7 S.W.3d 136, 141 (Tex. Crim. App. 1999) (“We have rejected the

reasonable hypothesis construct as a measure of legal sufficiency.”).

McCuin

also points out that the time interval between when Ryan left work and the time

of the first 911 call at 8:38 p.m. was more than two hours and, therefore,

“[t]his interval provided ample time for Ryan to make one or more stops, and to

dispose of his backpack and the money.” Notwithstanding that this appears to

be another reasonable hypothesis-type argument, Tago testified that he “left

[Ryan] behind” when he left work, not that Ryan also left work between 6:00 and

6:30 p.m.

McCuin

further argues that “Penix’s unsworn statements about McCuin’s alleged

admission were denied by him under oath in court, and were of very dubious

credibility in any event.” But it was within the province of the jury as

factfinder to believe the portions of Penix’s testimony in which he admitted

telling authorities that McCuin had made incriminating statements and to

disbelieve the portions of Penix’s testimony in which he said that he was lying

when he told authorities about MCuin’s statements. See Sharp v. State ,

707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied , 488 U.S. 872

(1988).

McCuin

argues that his case is “strikingly similar” to Herrin v. State , 125

S.W.3d 436 (Tex. Crim. App. 2002), a case in which the victim’s wallet

disappeared after his murder and there was no evidence directly linking the appellant

to the missing wallet. Id. at 441–42. Herrin is distinguishable

from the facts of this case because in addition to the missing red backpack and

$500, McCuin’s DNA was found in Ryan’s front jeans pocket and McCuin made admissions

to Penix, which were admitted in evidence.

Viewing

all of the evidence in the light most favorable to the prosecution, a rational

jury could have found beyond a reasonable doubt that McCuin murdered Ryan in

the course of committing or attempting to commit robbery. See Tex.

Penal Code Ann. § 19.03 (a)(2); Jackson , 443 U.S. at 319 , 99 S. Ct.

at 2789 . Accordingly, the evidence is sufficient to support McCuin’s

conviction for capital murder. We overrule McCuin’s first issue.

IV. L esser I ncluded O ffense

In

his third issue, McCuin argues that the trial court erred by denying his

request to instruct the jury on murder, a lesser included offense of capital

murder. McCuin relies solely on the arguments that he asserted in his

evidentiary sufficiency challenge.

We

use a two-step analysis to determine whether an appellant was entitled to a

lesser included offense instruction. Hall v. State , 225 S.W.3d 524, 528

(Tex. Crim. App. 2007); Rousseau v. State , 855 S.W.2d 666 , 672 B 73

(Tex. Crim. App.), cert. denied , 510 U.S. 919 (1993). First, the lesser

offense must come within article 37.09 of the code of criminal procedure. Tex.

Code Crim. Proc. Ann. art. 37.09 (West 2006); Moore v. State , 969 S.W.2d

4, 8 (Tex. Crim. App. 1998). Second, some evidence must exist in the record

that would permit a jury to rationally find that if the appellant is guilty, he

is guilty only of the lesser offense. Hall , 225 S.W.3d at 536 ; Salinas

v. State , 163 S.W.3d 734, 741 (Tex. Crim. App. 2005); Rousseau , 855

S.W.2d at 672 B 73.

Murder

is a lesser included offense of capital murder. McKinney v. State , 207

S.W.3d 366, 370 (Tex. Crim. App. 2006). Therefore, McCuin has satisfied the

first prong of the two-step analysis. He cannot, however, satisfy the second

prong. The State presented evidence that Ryan’s red backpack and $500 were

missing, that genetic material consistent with McCuin’s DNA was discovered in

Ryan’s front jeans pocket, that McCuin confessed to Penix that he murdered and

robbed Ryan, and that McCuin did not return to his Cadillac until approximately

ninety seconds after the gunshot. Because the jury rationally could have concluded

that McCuin had the specific intent to commit robbery, no jury could rationally

find that, under the evidence presented, McCuin was guilty of murder but not

guilty of capital murder. See Hall , 225 S.W.3d at 536 ; Salinas ,

163 S.W.3d at 741 . Accordingly, we overrule McCuin’s third issue.

V. E vidence

of G ang M embership

In

his fourth issue, McCuin argues that the trial court abused its discretion by

permitting the State to present evidence of McCuin’s membership in a violent,

criminal street gang. He contends that the evidence was inadmissible (1) under

rule of evidence 404(b) because it “was probably very damaging to the Defense

case” and (2) under rule of evidence 403 because “[n]ot only would it make

the jury more likely to believe that McCuin was capable of murder, but the jury

would also be tempted to convict McCuin in order to keep a potentially violent

criminal off the streets.”

We

review a trial court’s decision to admit or exclude evidence under an abuse of

discretion standard. Weatherred v. State , 15 S.W.3d 540, 542 (Tex.

Crim. App. 2000). A trial court does not abuse its discretion as long as the

decision to admit or exclude evidence is within the zone of reasonable

disagreement. Montgomery v. State , 810 S.W.2d 372, 380 (Tex. Crim. App.

1990) (op. on reh’g).

The

general rule is that the defendant is to be tried only for the offense charged,

not for any other crimes or for being a criminal generally. Segundo v.

State , 270 S.W.3d 79, 87 (Tex. Crim. App. 2008), cert. denied , 130

S. Ct. 53 (2009). Therefore, “[e]vidence of other crimes, wrongs or acts”

may not be admitted during the guilt-innocence phase of trial “to prove the

character of a person in order to show action in conformity therewith.” Tex.

R. Evid. 404(b).

The

State called Demarcus Penix to testify. Penix testified on direct examination

that he told police that McCuin had told him that McCuin “tried to jack a guy

and had to knock him out.” Penix also testified that he told Eric Holder that

McCuin had told him that McCuin was involved in the “robbery and killing.” Specifically,

Penix said that McCuin told him that McCuin had “approached [Ryan] to rob him,

he just wanted an easy take.” Although Penix confirmed making these

statements, he testified that he had lied about what McCuin told him to get the

authorities “out my face.”

On

cross-examination, Penix confirmed that he signed an affidavit stating that he

had a conversation with McCuin after the offense and that McCuin said he was

not involved in the incident at the car wash. Penix also stated in the

affidavit, “Since [McCuin] has told me that he did not commit this crime and I

have known him for as long as I have, I don’t believe [McCuin] was involved and

did not commit this murder.”

On

redirect examination, Penix testified that he, McCuin, and Kevin (McCuin’s

brother) were members of a street gang and that “[i]t’s bad” to tell the police

what you know about another gang member.

It

is apparent from the record that the State did not call Penix for the purpose

of eliciting testimony that McCuin was a gang member. Instead, the State

called Penix to testify about his statements to police regarding McCuin’s

comments implicating himself in the offense. It was not until after Penix testified

on cross-examination about his affidavit, in which he stated that he did not

believe that McCuin had murdered Ryan, that the State impeached Penix with

evidence that he and McCuin were in the same gang and elicited testimony that

“[i]t’s bad” to tell the police what you know about another gang member. This

court has previously held that evidence of gang membership bears on the

witness’s veracity and bias. See McKnight v. State , 874 S.W.2d

745 , 746–47 (Tex. App.—Fort Worth 1994, no pet.) (citing United States v.

Abel , 469 U.S. 45, 49 , 105 S. Ct. 465, 469 (1984)). [5]

Accordingly, we hold that the evidence of McCuin’s membership in the same gang

as Penix was admissible to show that Penix was biased to testify in favor of

McCuin. See id. ; see also Tex. R. Evid. 607 (stating that the

credibility of a witness may be attacked by any party, including the party

calling the witness).

Turning

to McCuin’s rule 403 argument, “[a]lthough relevant, evidence may be excluded

if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by

considerations of undue delay, or needless presentation of cumulative evidence.”

Tex. R. Evid. 403. Once a rule 403 objection is made, the trial court must

weigh the probative value of the evidence to determine if it is substantially

outweighed by its potential for unfair prejudice. Santellan v. State ,

939 S.W.2d 155, 169 (Tex. Crim. App. 1997). A rule 403 balancing test includes

the following factors: (1) the inherent probative force of the proffered

item of evidence along with (2) the proponent’s need for that evidence

against (3) any tendency of the evidence to suggest decision on an

improper basis, (4) any tendency of the evidence to confuse or distract

the jury from the main issues, (5) any tendency of the evidence to be

given undue weight by a jury that has not been equipped to evaluate the

probative force of the evidence, and (6) the likelihood that presentation

of the evidence will consume an inordinate amount of time or merely repeat evidence

already admitted. Gigliobianco v. State , 210 S.W.3d 637 , 641–42 &

n.8 (Tex. Crim. App. 2006); Dodson v. State , No. 02-08-00286-CR, 2010 WL

2889693 , at *4 (Tex. App.—Fort Worth July 22, 2010, pet. ref’d) (mem. op., not

designated for publication).

The

probative value of the impeachment evidence was high because the State wanted

to show why Penix testified that he had lied to police about the statements

that McCuin had made to him. The State mentioned the gang affiliation at

closing argument, but it was done in the context of arguing that Penix was

“trying his best to extricate himself from this case, doing everything he can

to take back the bad things that he said about [McCuin] because they are from

the same gang.” McCuin argues that the evidence of his gang membership made

the jury “more likely” to believe that he was capable of committing murder; but

there was other, much stronger evidence that served the same purpose—McCuin actually

told Penix that he murdered and robbed Ryan. After balancing the rule 403

factors, we conclude that the trial court could have reasonably determined that

the probative value of the evidence that McCuin was a member of the same gang

as Penix was not substantially outweighed by the countervailing factors

specified in the rule. See Tex. R. Evid. 403. We overrule McCuin’s

fourth issue.

VI. H earsay

In

his fifth issue, McCuin argues that the trial court abused its discretion by

admitting hearsay testimony regarding the venue of the offense. When the State

questioned two of its witnesses about whether the offense had occurred in

Tarrant County, McCuin asserted hearsay objections because the witnesses’

knowledge was based on road signs or on a map. But one witness testified on

voir dire that he had “ learned that Tarrant County covers different

parts of Texas and some parts of Arlington as well.” The other witness

testified that he based his opinion in part on his “training.” The trial court

therefore did not abuse its discretion by overruling McCuin’s objections because

the venue testimony was derived from the witnesses’ personal knowledge about

Tarrant County’s borders. See Johnson v. State , No. 07-07-00327-CR,

2009 WL 102930 , at *9 (Tex. App.—Amarillo Jan. 15, 2009, pet. struck) (mem.

op., not designated for publication) (“The testimony . . . that San

Jacinto Park is located in Potter County is not hearsay. Here, the officers

were merely testifying from their personal knowledge and that testimony was

subject to cross-examination.”). Alternatively, the testimony was admissible as

an exception to the hearsay rule. See Tex. R. Evid. 803(20)

(“Reputation in a community . . . as to boundaries of . . .

lands in the community . . . .”); Shilling v. State , 977

S.W.2d 789, 790 (Tex. App.—Fort Worth 1998, pet. ref’d) (holding that testimony

about county’s boundary location was admissible under rule of evidence

803(20)). We overrule McCuin’s fifth issue.

VII. S urveillance F ootage E xhibit

In

his sixth issue, McCuin argues that the trial court erred by denying his motion

for new trial because the jury was permitted to consider surveillance footage

that was not expressly admitted in evidence. The trial court held a “sua

sponte hearing” after McCuin’s trial concluded because it came to the court’s

attention that the video of the surveillance footage from the liquor store that

had been published to the jury during trial and during the jury’s deliberations

was not the video contained on the disc that was entered in evidence as State’s

Exhibit 20. As McCuin acknowledges, the video that was published to the jury, which

was transferred onto a disc marked as Court’s Exhibit C during the sua sponte

hearing, contains the same footage as State’s Exhibit 20 but has an additional

eight minutes of surveillance footage that was not included in State’s Exhibit

20. At the sua sponte hearing, the trial court, the State, and both McCuin and

his trial attorney watched both exhibits, and the State and McCuin’s attorney

agreed that Court’s Exhibit C was the version of the surveillance footage that

had been published to the jury. On the State’s motion, the trial court

supplemented the record with Court’s Exhibit C in order to conform the record

to the evidence at trial.

An

exhibit not expressly admitted in evidence may nonetheless be considered as evidence

when the parties and the judge treat the exhibit as if it were in evidence. See

Harden v. State , 417 S.W.2d 170, 174 (Tex. Crim. App. 1967); see also

Amador v. State , 221 S.W.3d 666 , 673–74 (Tex. Crim. App. 2007). Here, the

record demonstrates that both parties treated Court’s Exhibit C as if it had

been admitted in evidence. Both parties agreed at the sua sponte hearing that

Court’s Exhibit C was the video that was published to the jury. There is no

dispute that State’s Exhibit 20 was never published to the jury. The cases

that McCuin cites are all distinguishable from the facts of this case because

the exhibits in those cases were never treated as though they had been admitted

in evidence. See, e.g., Osborne v. United States , 351 F.2d 111,

115 (8th Cir. 1965). We hold that the trial court did not abuse its discretion

by denying McCuin’s motion for new trial. See State v. Herndon , 215

S.W.3d 901 , 906–07 (Tex. Crim. App. 2007) (identifying abuse of discretion as

standard to review denial of motion for new trial). Accordingly, we overrule

McCuin’s sixth issue.

VIII. C onclusion

Having

overruled all of McCuin’s issues, we affirm the trial court’s judgment.

PER CURIAM

PANEL: MEIER, J.; LIVINGSTON, C.J.; and

GABRIEL, J.

DO NOT PUBLISH

Tex. R. App .

P. 47.2(b)

DELIVERED:

June 30, 2011

[1] See Tex. R. App. P. 47.4.

[2] The footage shows McCuin driving

his Cadillac to the car wash; McCuin then parking the Cadillac at the liquor

store; McCuin exiting the Cadillac and walking towards the car wash; Kevin

exiting the passenger side of the Cadillac and entering the driver’s side of

the Cadillac; Kevin backing the Cadillac out of the parking space and pulling

forward; a patron of the liquor store turning towards the car wash upon hearing

a gunshot; the Cadillac leaving the liquor store parking lot and driving to the

car wash; and McCuin running from the car wash to the Cadillac.

[3] The indictment alleged in

relevant part that McCuin “did then and there intentionally cause the death of

an individual, Rodney Ryan, by shooting him with a firearm, and the said

defendant was then and there in the course of committing or attempting to

commit the offense of robbery.”

[4] The State did not seek the

death penalty.

[5] In Abel , the

Supreme Court reasoned,

Mills’ and respondent’s

membership in the Aryan Brotherhood supported the inference that Mills’

testimony was slanted or perhaps fabricated in respondent’s favor. A witness’

and a party’s common membership in an organization, even without proof that the

witness or party has personally adopted its tenets, is certainly probative of

bias.

469 U.S. at 52 , 105

S. Ct. at 469 .