Kendrick Tormai Hines v. State

Opinion issued February

10, 2011

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-09-00629-CR

———————————

Kendrick

Tormai Hines ,

Appellant

V.

THE STATE OF

TEXAS, Appellee

On Appeal from the 178th

District Court

Harris County, Texas

Trial Court Case No. 1151414

MEMORANDUM

OPINION

A

jury convicted appellant Kendrick Tormai Hines of the offense of murder and

assessed punishment at 85 years’ imprisonment and a $10,000.00 fine. [1]

The jury also found true two

enhancements for possession of a controlled substance and possession of a

firearm by a felon. Appellant brings

three issues on appeal, arguing that the evidence is legally and is factually

insufficient to support his conviction and that the trial court erred in not

allowing him to present evidence concerning the symbolism of a tattoo on the

victim’s face. We affirm.

Background

Appellant was indicted for the murder

of Brandon Rem. At trial, appellant’s

former girlfriend, Lorena Malone, testified that she lived with appellant and their

infant son in the Royal Palms apartment complex. In October 2007, appellant moved into Symintha

Robinson’s apartment, which was also in the Royal Palms complex. Appellant and Malone ceased dating, and

Malone took primary care of their child; however, appellant was able to see his

son on a few occasions.

Malone was friends with Brandon Rem. Rem called and asked to stay with Malone

because, following an argument with his wife, he had been “put out” of his home. Rem met Malone at her apartment on the

morning of December 29, 2007. Malone was

cleaning her apartment, and Rem accompanied her to take out the trash. As they returned to the apartment, they saw

Robinson.

Later that evening, appellant and

Robinson came to Malone’s apartment to retrieve some of appellant’s property. Malone opened the door; appellant and

Robinson remained outside. When

appellant saw Rem, he asked who he was. Rem

approached the door, and Malone pushed him back. Appellant saw “a chrome reflected item” in

Rem’s hand and thought it was a gun. Appellant

and Robinson left. Malone testified that

as appellant walked away he said that “he had something for [Rem].” She further testified that it looked like

both appellant and Rem wanted to fight each other.

Malone did not have a telephone, but she

wanted to tell her mother that appellant “had gotten into it with [Rem].” She and Rem walked to their neighbor Shanta

Jackson’s apartment to use the telephone.

Rem remained outside during Malone’s phone conversation.

Appellant testified at trial that

after leaving Malone’s apartment he returned to Robinson’s apartment to

retrieve his gun. He planned to return

to Malone’s apartment to retrieve his property. On his way back to Malone’s apartment, he saw

Rem in the courtyard. Appellant

testified that Rem said, “What you want to do? What’s up now?” Appellant testified that he saw a gun in

Rem’s hand and that Rem aimed the gun at him.

Appellant was afraid, shot Rem, and fled the scene.

One witness, Jenise Duncan, testified

to the shooting. She testified that Rem

did not have a weapon when appellant shot him.

She testified that as appellant approached Rem from across the courtyard,

Rem took off his jacket and backed up with his hands in the air for protection. Appellant shot Rem, walked over to him, and

said, “You ain’t got nothing to say now, n——r.”

A second witness, Melinda LeBlanc,

testified to seeing appellant and Rem immediately after the shooting. Appellant’s trial counsel questioned LeBlanc

as to what appellant and Rem were wearing immediately after the shooting. LeBlanc testified that Rem “had a do-rag on,”

and she also stated that “he had a jacket on,” although it was not entirely

clear from the transcript that LeBlanc was still referring to Rem.

A third witness, Shanta Jackson, also

testified to seeing appellant and Rem immediately after the shooting. She testified that she saw appellant walk up

to Rem after Rem had been shot. She

testified that when she saw Rem on the ground he was not wearing a jacket.

Andrew Friesenhahn, a Houston Fire

Department paramedic, responded to the incident, accompanied by other

firefighters. They found Rem face down

and determined he was dead. Friesenhahn

testified that Rem was not wearing a jacket.

Because the crowd was hostile toward the team, and Friesenhahn feared

for the officers’ safety, the HFD team put Rem’s body on a stretcher and placed

it in the ambulance to wait for the police to arrive. Friesenhahn testified that the he did not see

or feel a gun near Rem.

Houston Police Officers M. Valle and E.

Tewes were sent to the scene. They

attempted to control a crowd of approximately 100 people, while the fire

department worked on Rem’s body. Officer

Valle testified that the only evidence he found at the scene was one spent bullet

casing. Officer D. Nunez, a crime scene investigator,

arrived and photographed the scene. In

addition to the spent casing, he found a camouflage jacket underneath a

blanket. Officer Nunez did not find any

bullet holes, other spent casings, or other firearms at the scene.

Houston Police Sergeants M. Sosa and P.

Munoz of the HPD arrived last. Sergeant

Sosa testified that a jacket found near Rem’s body was recovered and searched

before being tagged into evidence and that no weapon was found in the

jacket. Neither the firefighters nor the

police officers found a weapon on or near Rem’s body.

James Jackson, a forensic chemist from

the Harris County Medical Examiner’s Office, performed the gunshot residue

analysis on Rem. He testified that he

found two particles of the elements that comprise gunshot residue on Rem’s

right hand and no particles on his left hand. These results were inconclusive as to whether

Rem had fired or was handling a gun. Jackson

explained to the jury that gunshot residue is very transferable and that

individuals who did not come in contact with a gun could have one or two

gunshot residue particles on their hands as a result of their day‑to‑day

activities. Jackson further explained to

the jury that the presence of gunshot residue particles could indicate that Rem

had handled or had fired a gun.

Analysis

Sufficiency

of the evidence

In

issues one and two, appellant challenges the legal sufficiency of his

conviction because he contends the evidence established that he had a right to use

deadly force to defend himself. See Tex.

Penal Code Ann. § 9.31 (West Supp. 2010). When a challenge pertains to the rejection of

a defensive claim, we apply the same standards used in reviewing the

sufficiency of the evidence to support a guilty verdict. See

Saxton v. State , 804 S.W.2d 910, 914 (Tex. Crim. App. 1991).

We review the legal sufficiency of

the evidence by viewing the evidence in the light most favorable to the 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, 319 , 99 S. Ct. 2781,

2789 (1979); King v. State , 29 S.W.3d 556, 562 (Tex. Crim. App.

2000). The fact finder is the sole judge of the weight and credibility of

the evidence. Brown v. State , 270 S.W.3d 564, 568 (Tex. Crim. App.

2008). Although our analysis considers all of the evidence presented at

trial, we may not re-weigh the evidence and substitute our judgment for that of

the fact finder. King , 29 S.W.3d at 562 . We presume that the

fact finder resolved all conflicts in the evidence in favor of the verdict, and

we defer to that resolution. Clayton v. State , 235 S.W.3d 772, 778

(Tex. Crim. App. 2007).

In Brooks v. State , the Court

of Criminal Appeals overruled Clewis v. State and held that claims of

factual insufficiency should now be analyzed under the Jackson v. Virginia

standard used for legal sufficiency review. Brooks , 323 S.W.3d 893, 912

(Tex. Crim. App. 2010) (“[W]e decide that the Jackson v. Virginia

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.”). Because appellant makes the exact same arguments for why the

evidence is both legally and factually insufficient, we solely address

appellant’s legal sufficiency contention.

See Leonard v. State ,

No. 01‑09‑00379‑CR, 2010 WL 4676989 , at *2 n.2 (Tex.

App.—Houston [1st Dist.] Nov. 18, 2010, no. pet. h.).

A defendant asserting a claim of

self-defense bears the initial burden of producing some evidence in support of his

contention; if he meets this burden, the State then takes on the burden of

persuasion to disprove the raised defense. See Zuliani v. State , 97 S.W.3d 589, 594 (Tex. Crim. App.

2003). The State’s burden of persuasion

“is not one that requires the production of evidence, rather it requires only

that the State prove its case beyond a reasonable doubt.” Id. When the jury finds a defendant guilty, there

is an implicit finding against the defensive theory. Id.

The

jury exclusively judges the credibility of witnesses, the weight to be given to

their testimony, and the reconciliation of conflicting evidence. Wesbrook

v. State , 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); McKinny v. State , 76 S.W.3d 463 , 468–69 (Tex. App.—Houston [1st

Dist.] 2002, no pet.). The jury may

believe any part or all of a witness’s testimony. McKinny ,

76 S.W.3d at 469 . “ Each fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of

all the incriminating circumstances is sufficient to support the conviction.” Hooper v.

State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). If there is evidence

that establishes guilt beyond a reasonable doubt and the jury believes that evidence,

the judgment must be affirmed. Fitts v. State ,

982 S.W.2d 175, 185 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d) .

To convict appellant of murder, the

State had to prove, beyond a reasonable doubt, that appellant (1) intentionally

or knowingly caused Rem’s death or (2) intended to cause serious bodily injury

and committed an act clearly dangerous to human life that caused Rem’s death. See Tex. Penal Code § 19.02(b) (West

2003). Appellant would have been

justified in using deadly force if a reasonable person in his situation would

not have retreated and to the extent appellant reasonably believed that deadly

force was immediately necessary to protect himself against Rem’s use or attempted

use of unlawful deadly force. Tex. Penal Code § 9.32(a) (West Supp.

2010).

Appellant argues that the physical

evidence demonstrates that Rem could have had a gun on the night of the

shooting. James Jackson’s testimony,

however, was inconclusive as to whether Rem had a gun at the time appellant

shot him. Appellant further argues that

the presence of the blanket and the fact that Rem was not wearing a jacket when

the fire department team arrived are signs that the crime scene was

contaminated and that Rem’s gun could have been taken by another individual. Appellant relies on the testimony of Melinda

LeBlanc that Rem was wearing a jacket after he was shot and lying on the ground. Jenise Duncan testified, however, that Rem

removed his jacket before appellant shot him.

Shanta Jackson testified that she saw appellant approach Rem after Rem

had been shot. This suggests that she

witnessed the scene before any alleged contamination. She testified that Rem did not have a jacket

on when he was lying on the ground with appellant present. LeBlanc arrived on the scene immediately

after the shooting, and the testimony as to whether Rem was wearing a jacket

was unclear.

When viewed in the light most

favorable to the verdict, there was evidence from which a rational jury could

have found guilt and from which it could have formed a rational doubt about the

credibility of appellant’s defensive theory. The evidence in this case shows that appellant

shot Rem. One witness testified to

seeing appellant shoot Rem, and numerous others testified that they saw

appellant near Rem’s body immediately after the shooting. Appellant did not deny shooting Rem. Appellant testified to the jury that Rem had

a gun, and the jury chose to disbelieve this testimony. See

Saxton , 804 S.W.2d at 914 (holding

that jury verdict of guilty implicitly shows that jury rejected defendant’s

self-defense theory); Denman v. State ,

193 S.W.3d 129, 132 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (holding

that “the jury, by finding appellant guilty, implicitly rejected his

self-defense theory . . . [and] necessarily chose not to believe [his]

testimony.”). Jenise Duncan testified that

appellant shot Rem and that Rem was unarmed, and the jury chose to believe this

testimony. See Saxton , 804 S.W.2d at 914 .

We conclude that a rational trier of

fact could have determined beyond a reasonable doubt that appellant committed

the offense of murder and did not act in legally permissible self-defense. See Lee

v. State , 259 S.W.3d 785, 791 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d)

(holding that evidence was legally sufficient to support defendant’s conviction

for murder because jury could believe testimony of other witnesses and

disbelieve conflicting testimony given by defendant on issue of self-defense); Denman , 193 S.W.3d at 132–33 (holding

that “the jury [does] not have to accept [defendant’s] self‑defense

theory—appellant’s testimony does not ‘prove,’ by itself, a claim of self‑defense”). We therefore hold that the evidence is both legally

and factually sufficient, and we overrule issues one and two.

Admissibility of evidence

In issue three, appellant contends that the trial court erred by not allowing him to

introduce evidence of the meaning of Rem’s teardrop tattoo. We review a

trial court’s decision to admit or exclude evidence under an abuse‑of‑discretion

standard. Torres v. State , 71 S.W.3d 758, 760 (Tex. Crim. App.

2002). A trial court has wide discretion

in its decision to admit or exclude evidence.

Edwards v. State ,

178 S.W.3d 139, 145 (Tex. App.—Houston [1st Dist.] 2005, no pet.). We will not reverse a trial court’s ruling on

the admission of evidence unless that ruling falls outside the zone of

reasonable disagreement. Burden v. State , 55 S.W.3d 608, 615 (Tex. Crim. App.

2001). If a trial court’s decision is

correct under any theory of law, the decision should not be disturbed even if

the trial court gave the wrong reason for its ruling. See Romero v. State , 800 S.W.2d 539 , 543–44 (Tex. Crim. App.

1990).

“A defendant in a homicide prosecution

who raises an issue of self-defense may introduce evidence of the deceased’s

violent character.” Torres , 71 S.W.3d at 760 ; see

Tex. R. Evid. 404(a)(2). This evidence can include the victim’s

reputation for violence or particular violent actions committed by the victim

which would be relevant to the defendant’s reasonable belief that he needed to

act in self‑defense. See Ex parte Miller , No. AP‑76,167,

slip op. at 10–11, 2009 WL 3446468, at *4 (Tex. Crim. App. Oct. 28, 2009), reh’g granted (Jan. 27, 2010); see also Stone v. State , 751 S.W.2d 579,

585 (Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (citing Thompson v. State , 659 S.W.2d 649 ,

653–55 (Tex. Crim. App. 1983)). The

evidence of the victim’s reputation or previous violent actions must be

relevant for a purpose other than character conformity. Tex. R.

Evid. 404(b). Evidence demonstrating

the deceased’s violent character or the defendant’s fear of danger, to prove

the reasonableness of apprehension in a defendant’s self-defense claim, can be

a relevant use of evidence apart from character conformity. See

Torres , 71 S.W.3d at 761 . This

evidence must be admitted as testimony in the form of opinion or testimony to

reputation. Tex. R. Evid. 405(a).

In

Mozon v. State , the Court of Criminal Appeals set out two theories for the

admissibility of evidence of the deceased’s character for violence. The evidence may be admitted (1) to show that

the defendant’s perception of danger was reasonable based on the deceased’s violent

character, which requires a showing that the defendant was aware of the

deceased’s violent character, and (2) to show that the deceased was the first

aggressor in conformity with his or her character, which does not require a

showing that the defendant have personal knowledge of the deceased’s violent

character. Mozon v. State , 991 S.W.2d 841, 845 (Tex. Crim. App. 1999). Mozon

also addressed the effect of the Texas Rules of Criminal Evidence on the common‑law

understanding of these theories of evidence.

Id.

In Ex

parte Miller , the Court of

Criminal Appeals clarified that:

[A] defendant may offer reputation or

opinion testimony or evidence of specific prior acts of violence by the victim

to show the “reasonableness of defendant’s claim of apprehension of danger”

from the victim. This is called

“communicated character” because the defendant is aware of the victim’s violent

tendencies and perceives a danger posed by the victim, regardless of whether

the danger is real or not. This theory does not invoke Rule 404(a)(2)

because Rule 404 bars character evidence only when offered to prove conduct in

conformity, i.e. , that

the victim acted in conformity with his violent character. Here, the defendant

is not trying to prove that the victim actually is violent; rather, he is

proving his own self-defensive state of mind and the reasonableness of that

state of mind.

Ex parte Miller , No. AP‑76,167, slip op. at 10–11, 2009 WL 3446468, at *4 (internal citations omitted). [2]

Evidence of the victim’s previous

violent acts, when offered for a noncharacter purpose, may be admissible under

Rule 404(b). Id. ,

No. AP‑76,167, slip op. at

13, 2009 WL 3446468, at *5 .

The victim’s previous violent acts do

not need to involve the defendant directly before this evidence can be

admissible under Rule 404(b). See Hayes v. State , 161 S.W.3d 507, 509

(Tex. Crim. App. 2005) (holding that evidence of victim’s previous bad acts can

be admitted under Rule 404(b) even if those acts did not “implicate”

defendant). However, the defendant must

be aware of the reputation or specific acts for the evidence to be admissible

to demonstrate his state of mind at the time of the commission of the crime. Hayes v.

State , 124 S.W.3d 781 , 785–86 (Tex. App.—Houston [1st Dist.] 2003) (citing Torres , 71 S.W.3d at 761 n.4) , aff’d , 161 S.W.3d 507 (Tex. Crim. App.

2005).

At trial, the significance of Rem’s

tattoos was first addressed in the cross‑examination of Sergeant Sosa by

appellant’s trial counsel. Once Sergeant

Sosa testified that he was familiar with gang tattoos and that gang tattoos

have symbolism attached to them, appellant’s trial counsel approached Sergeant

Sosa with photos of Rem and asked about the symbolism of Rem’s tattoos. Sosa testified that he was familiar with the

teardrop tattoo in particular and that it was symbolic. The State objected to questions about the tattoo

as improper character evidence. Counsel

approached the bench, and appellant’s trial counsel stated that the

characterization of the tattoo could show that there was a “fight between

[appellant and Rem]” and that the tattoo could explain why the crowd was

hostile to Malone and Rem.

On voir dire examination, Sergeant

Sosa, outside the presence of the jury, testified that a teardrop tattoo could

represent either “the loss of a homeboy” or that the person with the tattoo had

killed someone. The trial court then

determined that testimony as to the meaning of Rem’s teardrop tattoo was

inadmissible. The trial court ruled (1)

that the evidence was not relevant and (2) even if the evidence were relevant,

then it was excluded because the probative value of the evidence was outweighed

by the danger of undue prejudice, confusion of the issue, or danger of misleading

of the jury. See Tex. R. Evid. 403

(providing that relevant testimony may be excluded if probative value of evidence

is outweighed by potential of unduly prejudicing, confusing, or misleading

jury).

Latoya Rem, Brandon Rem’s wife, later

testified that she was familiar with Rem’s tattoos. Appellant’s trial counsel asked Latoya Rem if

she knew what the tattoos meant. The

State objected that the question was both irrelevant and improper character

evidence. The trial court sustained this

objection. The trial court retired the

jury, and appellant’s trial counsel questioned Latoya Rem about Rem’s tattoos

in a voir dire examination. Latoya Rem

testified that Rem was not in a gang, that she did not know if the tattoos on

Rem’s body signified gang membership, and that Rem’s teardrop tattoo meant that

“[Rem] lost a loved one.”

In subsequent testimony, appellant

testified that he did not see Rem’s teardrop tattoo during their initial

meeting at Malone’s apartment or at any time on the night that he shot Rem. Further, he testified that he had never seen

Rem before the night he shot him.

We hold that the trial court did not

err in refusing to admit the testimony on the symbolism of Rem’s tattoo. Appellant’s determination that he needed to

shoot Rem in self-defense could not have been based on apprehension of Rem’s

previous violent acts or reputation as demonstrated by the tattoo because

appellant was unaware of Rem’s teardrop tattoo.

Compare Hayes , 124 S.W.3d at 786

(upholding exclusion of evidence of potential victim’s previous assault on

third party with gun as evidence to show defendant’s state of mind because

defendant did not have personal knowledge of this assault), with Espinoza v. State , 951 S.W.2d 100,

102 (Tex. App.—Corpus Christi 1997, pet. ref’d) (holding that it is reversible

error to exclude defendant’s evidence of victim’s reputation for violence when

defendant testified that he was aware of victim’s violent nature). Appellant was not aware of Rem’s reputation

as demonstrated by his teardrop tattoo; therefore, evidence about the tattoo to

demonstrate appellant’s state of mind was not admissible. See

Hayes , 124 S.W.3d at 785–86. The trial court did not abuse its discretion

in excluding inadmissible evidence.

We overrule appellant’s third issue.

Conclusion

We

affirm the trial court’s judgment.

Evelyn

V. Keyes

Justice

Panel

consists of Justices Keyes, Higley, and Bland.

Do not publish. Tex.

R. App. P. 47.2( b).

[1] See Tex. Penal Code Ann. § 19.02(b)(2) (West 2003).

[2] The

Texas Court of Criminal Appeals case on this issue, Ex parte Miller , No. AP-76,167, 2009

WL 3446468 (Tex. Crim. App. Oct. 28, 2009) , reh’g granted (Jan. 27, 2010), has not been released for publication yet. Miller

clarifies that 404(a)(2) applies only to evidence offered to show that the

victim was the first aggressor. Id. , No. AP‑76,167, slip op. at 10–11, 2009 WL 3446468, at *4 . It also

clarifies that evidence offered to show that the defendant’s apprehension of

danger is reasonable “does not invoke 404(a)(2)” and “may be admissible under

404(b).” Id ., No. AP‑76,167,

slip op. at 10–13, 2009 WL 3446468 , at *4–5.