Rickey Ellison v. State

Opinion filed August 13, 2015

In The

Eleventh Court of Appeals

__________

No. 11-12-00019-CR

__________

RICKEY ELLISON, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 331st District Court

Travis County, Texas

Trial Court Cause No. D-1-DC-09-900320

OPINION

The jury convicted Rickey Ellison of murder. The trial court assessed

Appellant’s punishment at confinement for life in the Institutional Division of the

Texas Department of Criminal Justice. We affirm.

Background Facts

This appeal arises from Appellant’s conviction in 2011 for the murder of

Jimmy Milo on or about February 19, 1981. Appellant does not challenge the

sufficiency of the evidence to support his conviction. However, a summary of the

evidence offered at trial is necessary to provide context for Appellant’s issues on

appeal and our analysis of those issues. As set forth in greater detail below, the State

alleges that Appellant engaged in a crime spree in February of 1981 that resulted in

the murder of Cassandra Jackson, the murder of Jimmy Milo, the abduction of

Barbara Bailey Scott, and the attempted capital murder of Deputy Charles B. Lacey.

The State further contends that Appellant used the same gun to commit these crimes.

Among other things, Appellant contends that his rights under the Confrontation

Clause were violated by the State’s ballistics evidence linking him to a murder

occurring thirty years prior to his conviction.

Murder of Cassandra Jackson

In February 1981, Carlos B. Wilson was dating Cassandra Jackson. Wilson

and Jackson lived in San Antonio. Wilson owned a 1965 Pontiac LeMans. He had

a .357 magnum derringer and some ammunition for it that he kept in the glove box

of the car. On February 17, 1981, he left San Antonio for Florida in connection with

his employment as a truck driver. Wilson loaned his car to Jackson to use while he

was on his trip to Florida. When Wilson returned to San Antonio, he could not find

Jackson or his car. On February 21, 1981, Wilson reported to police that his car had

been stolen.

Also on February 21, 1981, the police found Jackson’s body at a location in

Bastrop County. Jackson had been shot once in the head and once in her right leg.

At her autopsy, the medical examiner, Dr. Roberto G. Bayardo, recovered a

fragmented copper jacket lead bullet from Jackson’s brain and another bullet from

her knee area. The medical examiner gave an envelope containing the bullets to

Texas Ranger Ronald Stewart. Ranger Stewart submitted the bullets to the

Department of Public Safety Laboratory in Austin for ballistics testing.

Ranger Stewart learned that Jackson was the subject of a missing persons

report. On February 26, 1981, Ranger Stewart met with Wilson about Jackson’s

disappearance. After the meeting, Wilson saw his car parked on a street in

downtown Austin. Wilson testified that the windows of the car were rolled down,

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that the car keys were inside the car, and that there were five parking tickets in the

seat of the car. Wilson said that the derringer that he kept in the glove box of the car

was missing. As of the date of the underlying trial, no one had been tried for the

murder of Jackson.

Murder of Jimmy Milo

As noted previously, this appeal arises from Appellant’s conviction in 2011

for the 1981 murder of Jimmy Milo. During the early morning hours of February 19,

1981, police responded to a call that there had been a shooting in east Austin. Milo,

who was a “transvestite,” had been shot in the head. Dr. Bayardo also performed

Milo’s autopsy. Detective Edward Villegas was employed in the homicide division

of the Austin Police Department in 1981. Through his employment as a police

officer, Detective Villegas knew Milo’s identity. Detective Villegas testified that

Milo was a transvestite who went by the street name, “Rachel.” Detective Villegas

testified that he was present at Milo’s autopsy and that the decedent at the autopsy

was Milo. During the autopsy, Dr. Bayardo recovered a copper jacket and a lead

core from a single bullet. He gave an envelope containing the pieces of the bullet to

Sergeant Lloyd Polk of the Austin Police Department. Sergeant Polk submitted the

envelope containing the bullet pieces to the DPS Lab in Austin for ballistics testing.

Abduction of Barbara Bailey Scott and Attempted Capital Murder of Deputy

Charles B. Lacey

On February 19, 1981, Barbara Bailey Scott worked at her job in the

comptroller’s office in downtown Austin. She left work at about 7:00 p.m. and

walked to her car in a nearby parking garage. Scott testified that a man, who was

later identified as Appellant, followed her into the garage. She ran to her car, but

Appellant continued to follow her. Appellant got into the car with her, and he drove

away. Appellant was carrying a pistol in his pants. He showed the gun to Scott.

3

Later that night, Travis County Deputy Sheriff Charles B. Lacey activated the

lights on his police vehicle to stop Appellant as Appellant and Scott were traveling

on State Highway 183. Appellant stopped Scott’s car on the side of the road. As

Deputy Lacey approached the car, Appellant shot him with the pistol that he had

been carrying in his pants. Scott saw Appellant shoot Deputy Lacey.

After Appellant shot Deputy Lacey, he drove away from the scene in Scott’s

car with Scott still inside. Appellant told Scott that he had used four bullets that day

and that he had three bullets left. On February 20, 1981, at about 2:00 a.m., they

stopped at a convenience store in Hempstead to get gas for the car. Appellant went

into the store to pay for the gas. Scott escaped from Appellant by driving away in

her car. Scott stopped at a café in Hempstead and asked someone to call the police.

In the meantime, Appellant stole a car and a watch from a man in Hempstead. At

about 7:45 a.m., officers attempted to stop Appellant. After a chase, the vehicle that

Appellant was driving got stuck in the mud. Appellant got out of the vehicle, and

the officers arrested him.

Deputy Lacey was seriously injured and was taken to the hospital. A bullet

was recovered at the hospital. Lieutenant Richard Gruetzner of the Travis County

Sheriff’s Department submitted the bullet to the DPS Lab in Austin for testing.

Waller County Deputy Sheriff Odis Pfeiffer brought a metal detector to the

scene where Appellant was arrested near Hempstead to look for a weapon in the

mud. During his search, he found a two-shot derringer pistol. Deputy Pfeiffer gave

the gun to Dan Fullerton of the Travis County Sherriff’s Department.1 The gun was

submitted to the DPS Lab in Austin for ballistics testing. Appellant was convicted

in 1982 of the attempted capital murder of Deputy Lacey in cause styled The State

1

Pfeiffer mistakenly referred to Dan Fullerton as Don C. Fulton in his testimony in the Milo trial.

Pfeiffer also testified during the Lacey trial. The record of the Lacey trial shows that Dan Fullerton was

the correct name of the individual to whom Pfeiffer was referring.

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of Texas v. Rickey Ellison, No. 62,502, in the 167th District Court of Travis County,

Texas. The jury convicted Appellant in that trial and assessed his punishment at life

in prison. Appellant appealed his 1982 conviction to the Austin Court of Appeals in

Cause No. 3–83–047–CR. The Austin court affirmed the conviction.

Events after Appellant’s 1982 Conviction

On January 3, 2001, Serena Lambright, a parole officer, interviewed

Appellant for the purpose of “pre-parole.” Her interview of Appellant included the

matter of Milo’s murder. Appellant told Lambright that he had asked a transvestite

for a cigarette. Appellant told Lambright that the person responded that he did not

smoke. Appellant then told Lambright that “[he] pulled out a gun and shot him in

the head.”

On January 22, 2007, Appellant gave a recorded interview to Austin Police

Detectives Steven Meaux and Frank Dixon concerning the murder of Jackson.

During the interview, Appellant said that he knew Jackson, that he had seen her at a

gas station in San Antonio, and that Jackson agreed to give him a ride. Appellant

admitted to the detectives that he killed Jackson with the derringer that was in the

glove box of her car. However, Appellant told Detectives Meaux and Dixon during

this 2007 interview that he did not remember whether he had shot Milo. Appellant

admitted during his January 2007 interview with Detectives Meaux and Dixon that

he shot Deputy Lacey with the derringer that he had found in the glove box of

Jackson’s vehicle. Appellant said that, after the officers stopped him, he dropped

the derringer in the mud and stomped on it.

Appellant’s 2011 Trial for the Murder of Jimmy Milo

Calvin S. Story Jr. testified as a ballistics expert for the State. Story testified

that, in 1981, Fred Rymer was a firearms examiner and the supervisor of the

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ballistics division at the DPS Lab in Austin.2 At that time, Story was a firearms

examiner in the division. Rymer died about five years before the underlying case

went to trial. In 1981, Rymer assigned the Jackson, Milo, and Lacey cases to

himself. Story said that Rymer fired test bullets from the derringer that was

submitted to the DPS Lab. Rymer then compared the test bullets with the bullets

that were recovered in the Jackson, Milo, and Lacey cases (the evidence bullets).

After Rymer completed his examination, Story performed an independent

examination of the test bullets and the evidence bullets. Based on his own

comparison of the test bullets and the evidence bullets, Story concluded that the

evidence bullets in the Jackson, Milo, and Lacey cases were fired from the derringer

that had been submitted to the DPS Lab.

In 2006, Detective Rick Blackmoor of the Austin Police Department

resubmitted the copper jacket and a lead core from the evidence bullet in the Milo

murder case to the DPS Lab for a reexamination. Story compared the jacket portion

of the bullet with the test bullets that Rymer fired from the derringer in 1981. Based

on his comparison, Story concluded that the Milo bullet and the test bullets were

fired from the same derringer.

At some point after the 1981 ballistics examinations at the DPS Lab, the

Travis County Sheriff’s Office took possession of the derringer in question.

However, the office disposed of the gun, and it could not be located before the Milo

case went to trial. Over Appellant’s objection, the State introduced a photocopy of

the derringer into evidence. Wilson testified that the photocopy depicted his

derringer that he had kept in the glove box of his car. A sticker on the gun in the

photocopy shows the DPS Lab case number from 1981 (L-152950).

2

Rymer’s name is incorrectly spelled as “Rhymer” in the reporter’s record in the Milo case.

6

The jury convicted Appellant of the murder of Milo. During the sentencing

phase, the trial court allowed Detective Meaux to testify, over Appellant’s

objections, as to Appellant’s reputation in the community of San Antonio in 1981

and to provide opinion testimony as to Appellant’s character for violence in 1981.

The trial court assessed Appellant’s punishment at confinement for life.

Analysis

Appellant presents eight issues for review. In his first two issues, Appellant

argues that the trial court erred when it admitted Story’s testimony as to statements

that Rymer made in connection with examination of the ballistics evidence. In his

first issue, Appellant contends that Story’s testimony violated his rights under the

Confrontation Clause. In his second issue, he contends that Story’s testimony

constituted inadmissible hearsay. In his third issue, Appellant argues that the trial

court erred when it admitted a photograph of the chain-of-custody sheet and

evidentiary envelopes related to the ballistics evidence. Appellant contends that the

envelopes contained hearsay statements and were, therefore, inadmissible. In his

fourth and fifth issues, Appellant argues that the trial court erred when it allowed the

medical examiner to identify the decedent as Milo. Appellant contends that the

medical examiner’s testimony violated his rights under the Confrontation Clause and

constituted inadmissible hearsay. In his sixth through eighth issues, Appellant

argues that, during the punishment phase, the trial court erred when it admitted

testimony as to his reputation in the community and opinion testimony regarding his

character for violence. Appellant contends that the testimony violated his rights

under the Confrontation Clause and that the State failed to establish the proper

predicate for admission of the testimony.

A. Ballistics Evidence

In his first issue, Appellant argues that the trial court violated his right to

confront and cross-examine witnesses under the Sixth and Fourteenth Amendments

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to the United States Constitution by allowing Story to testify that the evidentiary

bullets in the Jackson, Milo, and Lacey cases were fired from the derringer that was

submitted to the DPS Lab. He directs his challenge at the evidence regarding the

“provenance of the test bullets.” Rymer created the test bullets fired from the

derringer. Story did not fire the test bullets, and he did not see Rymer fire those

bullets. Appellant’s argument is based on the fact that Story did not have personal

knowledge that the test bullets were fired from the derringer but, instead, had to rely

on statements by Rymer that he fired the test bullets from the derringer. Appellant

contends that Rymer’s statements about the creation of the test bullets constituted

testimonial hearsay. Appellant states in his brief that “Story was not entitled to

testify as to the match between the evidentiary bullets and the derringer without

necessarily conveying for its testimonial truth the link between the weapon and the

test bullet used to make the comparison.” Thus, Appellant asserts that “the trial court

erred in admitting Story’s testimony of the provenance of the test bullets, and by

extension, the connection between the evidentiary bullet and the weapon.”

The Confrontation Clause of the Sixth Amendment, made applicable to the

states via the Fourteenth Amendment, provides a right in both federal and state

prosecutions to confront and cross-examine adverse witnesses. U.S. CONST.

amends. VI, XIV; Pointer v. Texas, 380 U.S. 400, 406 (1965); Woodall v. State, 336

S.W.3d 634, 641 (Tex. Crim. App. 2011). The principal concern of the

Confrontation Clause is to ensure the reliability of the evidence against a criminal

defendant by subjecting it to rigorous testing in the context of an adversary

proceeding before the trier of fact. Maryland v. Craig, 497 U.S. 836, 845 (1990).

The Confrontation Clause bars the admission of out-of-court testimonial

statements of a witness unless (1) the witness is unavailable to testify and (2) the

defendant had a prior opportunity to cross-examine the witness. Crawford v.

Washington, 541 U.S. 36, 53–54 (2004); Render v. State, 347 S.W.3d 905, 917 (Tex.

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App.—Eastland 2011, pet. ref’d). Post-Crawford, the threshold question in any

Confrontation Clause analysis is whether the statements at issue are testimonial or

nontestimonial in nature. Render, 347 S.W.3d at 917; Campos v. State, 256 S.W.3d

757, 761 (Tex. App.—Houston [14th Dist.] 2008, pet. ref’d). Testimonial statements

are those “that were made under circumstances which would lead an objective

witness reasonably to believe that the statement would be available for use at a later

trial.” Burch v. State, 401 S.W.3d 634, 636 (Tex. Crim. App. 2013) (quoting

Crawford, 541 U.S. at 52). We will assume for the purpose of our analysis that

Rymer’s statements concerning the creation of the test bullets fired from the

derringer were testimonial in nature. As set forth below, we conclude that the trial

court did not violate Appellant’s rights under the Confrontation Clause by permitting

Story to offer testimony that relied upon Rymer’s statements for his ballistics

comparison testimony.

Rymer was unavailable to testify as a witness in the underlying case because

he died before trial. However, Rymer testified in Appellant’s 1982 trial for the

attempted capital murder of Lacey.3 Rymer testified about his ballistics examination

at that trial.4 Rymer testified that he fired the test bullets from the derringer that was

submitted to the DPS Lab in 1981. Rymer said that he compared the test bullets with

the bullet that was recovered in the Lacey case and that, in his opinion, the evidence

bullet was fired from the derringer that was submitted to the DPS Lab. Appellant’s

counsel in the Lacey trial cross-examined Rymer about his creation of the test

3

Story did not testify at the Lacey trial.

4

Copies of the clerk’s record and the reporter’s record in the Lacey case have been filed as a

supplemental reporter’s record in this appeal. In this regard, we issued an order in this appeal concerning

the existence of the records from the 1982 trial. We asked the parties to confirm that the records from the

1982 trial were available for their use during the underlying trial. The parties confirmed to this court that

the previous record was available for their use. We additionally directed the parties to submit supplemental

briefing regarding the effect of Appellant’s opportunity to cross-examine Rymer in the 1982 trial on his

claim under the Confrontation Clause.

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bullets, his comparison of the test bullets with the evidence bullet in the Lacey case,

and his conclusions. The derringer was admitted into evidence at the Lacey trial.

Under Crawford, “[a] prior opportunity to cross-examine means an

opportunity for full personal adversarial cross-examination, including attacks on

credibility.” Coronado v. State, 351 S.W.3d 315, 325 (Tex. Crim. App. 2011).

Appellant argues in his supplemental brief that he did not have an adequate

opportunity to cross-examine Rymer in connection with the Milo case because he

was not a suspect at that time for Milo’s murder and his trial counsel was not

representing him with respect to the murder of Milo. We disagree. The

Confrontation Clause does not condition the use of prior testimony on representation

by the same counsel at both trials. United States v. Richardson, 781 F.3d 237, 244

(5th Cir. 2015) (citing United States v. Amaya, 533 F.2d 188, 191–92 (5th

Cir.1976)), petition for cert. filed, (U.S. June 25, 2015) (No. 14-10434). Instead,

“[a]dequate opportunity for cross-examination by competent counsel is sufficient”

for compliance with the Confrontation Clause. Id. (alteration in original) (quoting

Amaya, 533 F.2d at 192) (internal quotation marks omitted).

The focal point of Appellant’s challenge under the Confrontation Clause is

Story’s use of Rymer’s findings concerning the creation of the test bullets from the

derringer. The record from the Lacey case shows that Appellant not only had the

opportunity to cross-examine Rymer, but that his counsel actually cross-examined

Rymer about the creation of the test bullets. Thus, Appellant had an adequate

opportunity to cross-examine Rymer by competent counsel about the creation of the

test bullets in the Lacey case. Because Rymer was not available to testify in the

underlying trial, and because Appellant had an adequate opportunity to cross-

examine him in the Lacey case, the Confrontation Clause did not bar the admission

of Rymer’s out-of-court testimonial statements about his creation of the test bullets

in the underlying trial. Crawford, 541 U.S. at 53–54. Accordingly, the trial court

10

did not err when it allowed Story to testify that the test bullets were fired from the

derringer that was submitted to the DPS Lab.

Furthermore, the Court of Criminal Appeals recently held that the testimony

of an analyst who did not conduct all testing does not violate the Confrontation

Clause, so long as that analyst has personal knowledge of the testing and testifies

“about his or her own opinions and conclusions.” Paredes v. State, No. PD-1043-

14, 2015 WL 3486472, at *6 (Tex. Crim. App. June 3, 2015). While Story was not

the supervising analyst in the DPS lab in 1981, he did conduct his own independent

comparison of the test bullets with the three other evidence bullets. Story testified

about his comparisons of the evidence bullets in the Jackson, Milo, and Lacey cases

and concluded that they were all fired from the same gun. Story then compared the

evidence bullets with the test bullets, based upon the information from Rymer’s test

firing of the derringer. Story’s ballistics comparison testimony did not violate the

Confrontation Clause because Appellant had the opportunity to cross-examine Story

concerning his own opinions and conclusions. Id. In this regard, Story was “more

than a surrogate for a non-testifying analyst’s report.” Id.

However, even if we assume that the trial court erred when it admitted Story’s

testimony, we conclude that the error was harmless. Error in admitting evidence in

violation of the Confrontation Clause is constitutional error and, therefore, subject

to a harm analysis under Rule 44.2(a) of the Texas Rules of Appellate Procedure.

TEX. R. APP. P. 44.2(a); Langham v. State, 305 S.W.3d 568, 582 (Tex. Crim. App.

2010). Under Rule 44.2(a), we must reverse a judgment of conviction unless we

determine beyond a reasonable doubt that the error did not contribute to the

conviction. TEX. R. APP. P. 44.2(a). The following factors are relevant to

determining whether constitutional error under Crawford may be declared harmless

beyond a reasonable doubt: (1) the importance of the out-of-court statement to the

State’s case; (2) whether the statement was cumulative of other evidence; (3) the

11

presence or absence of evidence corroborating or contradicting the statement on

material points; and (4) the overall strength of the State’s case. Scott v. State, 227

S.W.3d 670, 690 (Tex. Crim. App. 2007); Davis v. State, 203 S.W.3d 845, 852 (Tex.

Crim. App. 2006); Render, 347 S.W.3d at 919–20. Thus, the presence of

overwhelming evidence supporting the finding in question can be a factor in the

evaluation of harmless error. Motilla v. State, 78 S.W.3d 352, 357 (Tex. Crim. App.

2002); Wesbrook v. State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000).

The emphasis of a harm analysis under Rule 44.2(a) should not be on the

propriety of the outcome of trial. Scott, 227 S.W.3d at 690. Rather, we must

determine whether the error adversely affected the integrity of the process leading

to the conviction. Id. The question for the reviewing court is not whether the jury

verdict was supported by the evidence. Id. Instead, the question is the likelihood

that the constitutional error was actually a contributing factor in the jury’s

deliberations in arriving at the verdict. Id. In performing a harm analysis, a

reviewing court may also consider the source and nature of the error, the amount of

emphasis by the State on the erroneously admitted evidence, and the weight the jury

may have given the erroneously admitted evidence compared to the balance of the

evidence with respect to the element or defensive issue to which it is relevant. Id.

With the above considerations in mind, we must determine whether there is a

reasonable possibility that the Crawford error moved the jury from a state of non-

persuasion to one of persuasion on a particular issue. Scott, 227 S.W.3d at 690;

Davis, 203 S.W.3d at 852–53. Ultimately, if we are to affirm, we must be satisfied

beyond a reasonable doubt, after considering the various factors, that the error did

not contribute to the conviction. Scott, 227 S.W.3d at 690–91.

Rymer’s statements concerning the test bullets were not imperative to the

State’s case because the State presented other compelling evidence that the evidence

bullets in the Jackson, Milo, and Lacey cases were all fired from the same derringer.

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Wilson had the derringer in the glove box of his car. Appellant told the detectives

that he took the derringer from the glove box. Scott saw Appellant shoot Deputy

Lacey with a pistol. Deputy Pfeiffer found the derringer buried in the mud at the

location where Appellant was arrested. Appellant told the detectives that he dropped

the gun in the mud and then stomped on it. Appellant admitted to the detectives that

he shot Jackson and Deputy Lacey with the derringer. Appellant told Lambright that

“[he] pulled out a gun and shot [the transvestite] in the head.”

Story’s testimony showed that the evidence bullets in the Jackson, Milo, and

Lacey cases were all fired from the same gun. Story did not need the test bullets to

reach this conclusion. Story could have reached this conclusion simply by

comparing the evidence bullets with each other. The existence of the test bullets

allowed Story to conclude that the evidence bullets were fired from a specific gun—

the derringer. Story’s conclusion that the evidence bullets were fired from the

derringer is cumulative of, and corroborated by, other evidence, including

Appellant’s admissions that he shot Jackson and Lacey with the same derringer,

Appellant’s admission to Lambright that he shot the transvestite in the head, Scott’s

testimony that she saw Appellant shoot Deputy Lacey, and the officer’s discovery

of the derringer in the mud at the arrest scene. Therefore, we conclude that evidence

of Rymer’s statements would not have materially affected the jury’s deliberations in

arriving at the verdict.

After carefully reviewing the record, we conclude beyond a reasonable doubt

that any error in admitting Rymer’s statements did not contribute to Appellant’s

conviction or punishment. Therefore, any error was harmless. Appellant’s first

issue is overruled.

Appellant asserts in his second issue that the trial court erred in overruling his

hearsay objection to Story’s testimony concerning Rymer’s findings about the

creation of the test bullets. We review a trial court’s ruling on admissibility of

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evidence for an abuse of discretion. Coble v. State, 330 S.W.3d 253, 272 (Tex. Crim.

App. 2010). We will uphold the trial court’s decision unless it lies outside the zone

of reasonable disagreement. Salazar v. State, 38 S.W.3d 141, 153–54 (Tex. Crim.

App. 2001).

Hearsay is a statement, other than one made by the declarant while testifying

at trial, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 801(d);

see Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002). Relying upon

Rule 703 of the Texas Rules of Evidence, the State contends that Story was permitted

to base his opinions on Rymer’s findings even if they constituted inadmissible

hearsay if the information was of a type reasonably relied upon by experts in the

field. In this regard, Story testified that it is common for ballistics experts to use test

bullets created by other experts. We agree with the State’s contention. Under Rule

703, an expert may base an opinion solely on hearsay. Martinez v. State, 22 S.W.3d

504, 508 (Tex. Crim. App. 2000); Aguilar v. State, 887 S.W.2d 27, 29 & n.8 (Tex.

Crim. App. 1994). Based upon Story’s testimony, the trial court did not err in

overruling Appellant’s hearsay objection.

Moreover, the violation of an evidentiary rule that results in the erroneous

admission of evidence constitutes nonconstitutional error. See Geuder v. State, 142

S.W.3d 372, 376 (Tex. App.—Houston [14th Dist.] 2004, pet. ref’d). As such, it is

subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate

Procedure. TEX. R. APP. P. 44.2(b); Motilla, 78 S.W.3d at 355; Gately v. State, 321

S.W.3d 72, 77 (Tex. App.—Eastland 2010, no pet.). Under Rule 44.2(b), we are to

disregard any error unless it affected the defendant’s substantial rights. TEX. R.

APP. P. 44.2(b). We have concluded that any error by the trial court in admitting

Rymer’s statements was harmless under the more stringent standards imposed by

Rule 44.2(a) for analyzing harm of constitutional errors. Therefore, even assuming

that Rymer’s statements were inadmissible hearsay under the Rules of Evidence, we

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need not conduct a separate harm analysis under the less stringent standard imposed

by Rule 44.2(b) for analyzing harm of nonconstitutional errors. Guidry v. State, 9

S.W.3d 133, 151 n.14 (Tex. Crim. App. 1999); Render, 347 S.W.3d at 920.

Appellant’s second issue is overruled.

B. Chain of Custody and Evidence Envelopes

In his third issue, Appellant challenges the admission of a photograph

depicting the chain of custody and evidence envelopes. The State offered a

photograph of the submission sheet, envelopes, and two bullets. Appellant objected

on hearsay and confrontation grounds. The trial court overruled the objections and

admitted the photograph.

During Story’s redirect examination, he testified that the DPS lab requires a

submission sheet that lists all of the items being submitted for analysis. The analyst

takes the submission sheet with the evidence and “generate[s] an evidence record

sheet in which states that this particular person received the evidence in this case

from this particular person on this date at this time.” Story noted that, in 1981, the

DPS lab received the evidence and submitted the documentation. The evidence was

assigned a lab number: L-152933. In 2006, Story documented the submission of

new evidence to be analyzed. That evidence included two envelopes, two bullets,

and a submission sheet. The envelopes and the submission sheet were labeled

L-152933, as noted in the photograph.

We review a trial court’s decision to admit photographs for an abuse of

discretion. Paredes v. State, 129 S.W.3d 530, 539 (Tex. Crim. App. 2004). A

photograph is generally admissible if verbal testimony about the matters depicted in

the photograph is also admissible. Id. The photograph showed that Story examined

the bullets that were in an envelope that matched the description given by

Dr. Bayardo in earlier testimony. Also, Story testified about the DPS lab procedures

that were employed when evidence was submitted for analysis both in 1982 and

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2006. Story referred to the photo to help explain this testimony. The photograph

was not admitted for any truth of the matter asserted. Accordingly, the trial court

did not abuse its discretion when it admitted the photograph.

Furthermore, based on our harm analysis in issue one, the admission of the

photograph was not harmful. As noted previously, a violation of the evidentiary

rules resulting in the erroneous admission is nonconstitutional error and is, therefore,

subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate

Procedure. TEX. R. APP. P. 44.2(b); Motilla, 78 S.W.3d at 355; Gately, 321 S.W.3d

at 77. Under Rule 44.2(b), we are to disregard any error unless it affected the

defendant’s substantial rights. TEX. R. APP. P. 44.2(b). The photograph, and Story’s

testimony, showed that the evidence bullets in the Jackson, Milo, and Lacey cases

were all fired from the same gun tested in 1982. The existence of the test bullets,

and the documents showing chain of custody, allowed Story to corroborate his

testimony that the evidence bullets were fired from a specific gun. The photograph

also corroborated Dr. Bayardo’s testimony about how he gave the bullets he

removed at the autopsy to the police. To the extent that the photograph indicated

that the evidence bullets were fired from the derringer, it is cumulative of other

evidence as noted above. Therefore, we conclude that any error in the admission of

the photograph into evidence did not affect Appellant’s substantial rights and must

be disregarded. We overrule Appellant’s third issue.

C. Medical Examiner’s Identification of Victim

In his fourth and fifth issues, Appellant contends that the trial court erred when

it allowed the medical examiner to identify the body as Milo. Appellant asserts that

Dr. Bayardo did not know Milo and, therefore, had to rely on hearsay statements of

the police officers to identify Milo. Appellant argues that Dr. Bayardo’s testimony

as to the identity of Milo violated his rights under the Confrontation Clause and

constituted inadmissible hearsay.

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Dr. Bayardo testified that, on the morning of February 19, 1981, he arrived at

the morgue to do an autopsy on “Jimmy Lasorge Milo.” He described the following

procedure regarding the identification of bodies prior to his performance of an

autopsy: “[E]verybody is toe tagged. So the tag has the name, the date of birth, the

race, whatever information is available at that point.” He testified that he relied upon

the information written on the toe tag as well as the medical investigator’s “written

report that comes with the body.” The medical investigator would have written the

information on the report based upon what he or she collected at the “scene of the

crime.”

Detective Villegas, who testified earlier during the trial, investigated the

murder of Milo in 1981. Detective Villegas testified at the underlying trial that he

knew Milo, was present at the autopsy, and identified the decedent as Milo. This is

substantively the same testimony elicited during Dr. Bayardo’s direct examination

regarding the identity of Milo’s body.

Assuming, without deciding, that the trial court erroneously admitted

Dr. Bayardo’s testimony regarding the identity of Milo in violation of the Rules of

Evidence and the Confrontation Clause, such errors are subject to a harm analysis.

See TEX. R. APP. P. 44.2; Rubio v. State, 241 S.W.3d 1, 3 (Tex. Crim. App. 2007)

(“[A]ny Confrontation Clause violation, once proven, is subject to harmless error

analysis.”); Clay v. State, 240 S.W.3d 895, 905–06 (Tex. Crim. App. 2007)

(conducting harmless error analysis on hearsay).

When a trial court erroneously admits hearsay, but the matter asserted by the

out-of-court statement is otherwise established through other admitted evidence, no

harm is done to the party challenging the hearsay. See Clay, 240 S.W.3d at 905–06

(holding that erroneously admitted hearsay “established little, if anything, negative

about appellant that was not also well established by the properly admitted evidence”

and was therefore harmless); Burks v. State, 876 S.W.2d 877, 898 (Tex. Crim. App.

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1994) (holding that erroneously admitted backdoor hearsay was harmless because

other testimony proved same facts); Jones v. State, 843 S.W.2d 487, 499 n.14 (Tex.

Crim. App. 1992) (observing that potential error of admitting backdoor hearsay was

harmless because jury heard similar evidence from other sources). The same rule

applies with respect to evidence elicited in violation of the Confrontation Clause.

See Davis, 203 S.W.3d at 853–56 (observing that testimony admitted in violation of

Confrontation Clause was cumulative of other admitted evidence and any error was

harmless beyond a reasonable doubt).

In this case, the alleged error is that Dr. Bayardo provided hearsay establishing

that the identity of the body on which he performed an autopsy was Milo, and

Appellant argues that this error violated his right to confront the police officer who

identified Milo’s body. However, Dr. Bayardo testified after Detective Villegas, and

Detective Villegas had already testified that he had gone to the morgue, saw

Dr. Bayardo, and identified Milo’s body at the autopsy. Appellant had the

opportunity to cross-examine Detective Villegas on this point. In light of the

testimony of Detective Villegas, we conclude that there is no reasonable likelihood

that the alleged error of admitting substantially the same testimony by Dr. Bayardo

materially affected the outcome of the jury’s deliberations. Thus, assuming that the

trial court erred in admitting hearsay during Dr. Bayardo’s testimony in violation of

the Confrontation Clause, we hold that the alleged error was harmless. See TEX. R.

APP. P. 44.2(a); Clay, 240 S.W.3d at 905–06; Davis, 203 S.W.3d at 853–56; Burks,

876 S.W.2d at 898; Jones, 843 S.W.2d at 499 n.14. We overrule Appellant’s fourth

and fifth issues.

D. Reputation and Opinion Testimony

In his sixth through eighth issues, Appellant argues that, during the

punishment phase, the trial court erred when it allowed former Detective Meaux to

testify as to Appellant’s reputation in the San Antonio community in 1981 and

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Appellant’s character for violence. Specifically, his sixth issue challenges the

admission of this testimony under the Confrontation Clause,5 his seventh issue

challenges the admission of this testimony without a sufficient predicate, and his

eighth issue challenges the admission of this testimony as improper opinion

testimony of his character for violence.

Detective Meaux’s punishment testimony was very brief. Detective Meaux

had no personal knowledge of Appellant’s reputation in the community in 1981 or

Appellant’s character for violence at the time. Detective Meaux interviewed another

police officer from San Antonio to determine Appellant’s reputation in the

community. Detective Meaux simply testified that Appellant was “very bad” and

“very violent.”

Assuming, without deciding, that the trial court erroneously admitted

Detective Meaux’s testimony regarding the reputation and character evidence of

Appellant from 1981, such errors are subject to a harm analysis. TEX. R.

APP. P. 44.2; Rubio, 241 S.W.3d at 3; Clay, 240 S.W.3d at 905–06.

We are persuaded beyond a reasonable doubt that the court’s punishment

would have been the same even if the trial court had not admitted Detective Meaux’s

testimony concerning Appellant’s reputation and character. Russeau, 171 S.W.3d at

881 (even if the trial court erred under the Confrontation Clause in admitting

punishment evidence, we nevertheless will affirm if we determine beyond a

reasonable doubt that the harm from the error did not contribute to the defendant’s

punishment). We have discussed at length the properly admitted evidence against

Appellant, including Appellant’s admission that he shot Jackson and Lacey with the

5

The State asserts that the protections afforded by the Confrontation Clause do not apply to the

punishment phase of a criminal trial. However, the Court of Criminal Appeals has held otherwise.

Russeau v. State, 171 S.W.3d 871, 880 (Tex. Crim. App. 2005). We have also recognized that the

Confrontation Clause applies during the punishment phase of a criminal trial. Walker v. State, 406 S.W.3d

590, 594 (Tex. App.—Eastland 2013, pet. ref’d); see also Dixon v. State, 244 S.W.3d 472, 482–83 (Tex.

App.—Houston [14th Dist.] 2007, pet. ref’d).

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same derringer, Appellant’s admission that he shot Milo in the head, and Scott’s

testimony that she saw Appellant shoot Deputy Lacey. The State also introduced

evidence of Appellant’s prior convictions. To the extent that the trial court may have

erroneously admitted reputation evidence, it paled in comparison to the direct

evidence of Appellant’s egregious conduct. The challenged evidence established

little, if anything, negative about Appellant that was not also well established by the

properly admitted evidence. Accordingly, we overrule Appellant’s sixth, seventh,

and eighth issues.

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY

JUSTICE

August 13, 2015

Publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.

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