Devon Hensley v. State

ACCEPTED

01-14-00615-CR

FIRST COURT OF APPEALS

HOUSTON, TEXAS

4/20/2015 3:52:26 PM

CHRISTOPHER PRINE

CLERK

No. 01-14-00615-CR

In the FILED IN

Court of Appeals 1st COURT OF APPEALS

HOUSTON, TEXAS

For the

4/20/2015 3:52:26 PM

First District of Texas CHRISTOPHER A. PRINE

At Houston Clerk



No. 1421977

In the 262nd District Court

Of Harris County, Texas



DEVON HENSLEY

Appellant

V.

THE STATE OF TEXAS

Appellee



STATE’S APPELLATE BRIEF



DEVON ANDERSON

District Attorney

Harris County, Texas

ABBIE MILES

State Bar No: 24072240

Assistant District Attorney

Harris County, Texas

JAMIE BURRO

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

Tel.: 713/755-5826

FAX No.: 713/755-5809

ORAL ARGUMENT REQUESTED ONLY IF REQUESTED BY APPELLANT

STATEMENT REGARDING ORAL ARGUMENT

Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, the State requests

oral argument only if oral argument is requested by the appellant.

IDENTIFICATION OF THE PARTIES

Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the names of all

interested parties is provided below.

Complainant, victim, or aggrieved party:

Keanthony Wilson

Counsel for the State:

Devon Anderson  District Attorney of Harris County

Abbie Miles  Assistant District Attorney on appeal

Jamie Burro  Assistant District Attorney at trial

Appellant or criminal defendant:

Devon Hensley

Counsel for Appellant:

Wayne T. Hill Counsel on appeal

Deborah Summers Counsel at trial

Trial Judge:

Hon. Denise Bradley Presiding Judge

i

TABLE OF CONTENTS

STATEMENT REGARDING ORAL ARGUMENT……………………...………..i

IDENTIFICATION OF THE PARTIES……………………………………...……i

INDEX OF AUTHORITIES……………………………………..………………..iii

STATEMENT OF THE CASE……………………………………………..………1

STATEMENT OF THE FACTS…………………………………..………………..1

SUMMARY OF THE ARGUMENT……………………………………..………....5

REPLY TO APPELLANT’S FIRST ISSUE PRESENTED

The evidence is legally sufficient because appellate courts are not permitted to re-

evaluate the credibility of witnesses because that is the sole province of the jury.

Appellant’s claim that the Keanthony and Clandre’s testimony should now not be

believed, turns the standard of review on its head. Further, the claim that the evidence

is legally insufficient because of an alleged drug debt flies in the face of caselaw and

the Texas Penal Code…………………………………………………………….….6

REPLY TO APPELLANT’S SECOND ISSUE PRESENTED

Appellant failed to preserve his second point of error by no re-urging his pretrial

motion when the evidence was offered during trial. Alternatively, denial of appellant’s

motion to testify free from impeachment was not an abuse of discretion because there

was great probative value in the prior convictions to impeach appellant’s testimony

because his prior convictions were recent and involved deception. Further, there was

very little prejudicial effect from the jury hearing that appellant had been convicted of

possession of a controlled substance with intent to deliver since appellant’s defense

was that he did not commit an aggravated robbery, but rather was given the vehicle to

pay a drug debt…………………………………………………………………..…13

REPLY TO APPELLANT’S THIRDAND FOURTH ISSUE PRESENTED

The trial court did not error in admitting evidence of an extraneous aggravated

robbery because appellant opened the door to the extraneous aggravated robbery by

testifying that he sold the vehicle and had no knowledge of the items in the vehicle

when he, in fact, used the vehicle in an aggravated robbery and the items found in the

vehicle were taken in the aggravated robbery, the trial court did not abuse its

discretion in admitting evidence of the aggravated robbery. ……………..............….19

ii

REPLY TO APPELLANT’S FIFTH ISSUE PRESENTED

The trial court committed no error in failing to sustain appellant’s objection to the

Prosecutor’s argument that appellant made up nicknames for Keanthony and Clandre

because it the argument was a reasonable inference from the evidence.

……………........................................................................................................................….29

CONCLUSION…………………………………..………………………………..31

CERTIFICATE OF SERVICE………………………………………………….....32

iii

INDEX OF AUTHORITIES

CASES

Alvarado v. State,

912 S.W.2d 199, 207 (Tex. Crim. App. 1995) ...........................................................7

Armstrong v. State,

179 S.W.3d 84 (Tex. App.—Fort Worth 2005, no pet.) .........................................11

Brooks v. State,

323 S.W.3d 893(Tex. Crim. App. 2010) ...................................................................7

Brown v. State,

270 S.W.3d 564 (Tex. Crim. App. 2008) ................................................................27

Casey v. State,

215 S.W.3d 870 (Tex. Crim. App. 2007) ................................................................20

Clayton v. State,

235 S.W.3d 772 (Tex. Crim. App. 2007) ..................................................................8

Collins v. State,

800 S.W.2d 267 (Tex. App.—Houston [14th Dist.] 1990, no pet.). .........................10

Conner v. State,

67 S.W.3d 192 (Tex. Crim. App. 2001) ....................................................................7

Crawford v. State,

509 S.W.2d 582 (Tex. Crim. App. 1974). ...............................................................10

Daggett v. State,

187 S.W.3d 444 (Tex. Crim. App. 2005) ................................................................25

Davis v. State,

259 S.W.3d 778 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d) .........................17

De La Paz v. State,

279 S.W.3d 336 (Tex. Crim. App. 2009) ...............................................................20

Devoe v. State,

354 S.W.3d 457 (Tex. Crim. App. 2011). ...............................................................20

Dewberry v. State,

4 S.W.3d 735 (Tex. Crim. App. 1999) ..................................................................8, 9

iv

Drew v. State,

743 S.W.2d 207 (Tex. Crim. App. 1987) ................................................................29

Etheridge v. State,

903 S.W.2d 1 (Tex. Crim. App. 1994) ............................................................. 13, 18

Ethington v. State,

819 S.W.2d 854 (Tex. Crim. App. 1991). ........................................................ 13, 19

Felder v. State,

848 S.W.2d 85 (Tex. Crim. App. 1992). .................................................................27

Ford v. State,

305 S.W.3d 530 (Tex. Crim. App. 2009). ....................................................... 12, 18

Freeman v. State,

340 S.W.3d 717 (Tex. Crim. App. 2011), cert. denied, 132 S.Ct. 1099. ......................27

Fuentes v. State,

991 S.W.2d 267 (Tex. Crim. App. 1999) ..................................................................7

Gaddis v. State,

753 S.W.2d 396 (Tex. Crim. App. 1988). ...............................................................28

Guidry v. State,

9 S.W.3d 133 (Tex. Crim. App. 1999). ...................................................................27

Hooper v. State,

214 S.W.3d 9 (Tex. Crim. App. 2007) ......................................................................8

Hudson v. State,

675 S.W.2d 507 (Tex. Crim. App. 1984). ........................................................ 13, 18

Jackson v. Virginia,

443 U.S 307 (1979) ..................................................................................................7

Kincaid v. State,

534 S.W.2d 340 (Tex. Crim. App. 1976) ................................................................26

King v. State,

953 S.W.2d 266 (Tex. Crim. App. 1997). ...............................................................30

Layton v. State,

280 S.W.3d 235 (Tex. Crim. App. 2009). ........................................................ 12, 18

v

Lucas v. State,

791 S.W.2d 35 (Tex. Crim. App. 1989) ..................................................................15

Martinez v. State,

327 S.W.3d 727 (Tex. Crim. App. 2010) ...............................................................20

Matson v. State,

819 S.W.2d 839 (Tex. Crim. App. 1991) ..................................................................8

Mendez v. State,

138 S.W.3d 334 (Tex. Crim. App. 2004). ........................................................ 12, 18

Mijores v. State,

11 S.W.3d 253 (Tex. App.—Houston [14th Dist.] 1999, no pet.). ...........................27

Morris v. State,

67 S.W.3d 257 (Tex. App.—Houston [1st Dist.] 2001, pet ref’d). .................... 14, 17

Motilla v. State,

78 S.W.3d 352 (Tex. Crim. App. 2002). .................................................................30

Mowbray v. State,

788 S.W.2d 658 (Tex. App.—Corpus Christi 1990, pet. ref’d). ..............................29

Pierce v. State,

218 S.W.3d 211 (Tex. App.—Texarkana 2007, pet. ref’d) .............................. 10, 11

Pomier v. State,

326 S.W.3d 373 (Tex. App.—Houston [14th Dist.] 2010, no pet.) ............................7

Powell v. State,

194 S.W.3d 503 (Tex. Crim. App. 2006) ............................................................8, 26

Prescott v. State,

744 S.W.2d 128 (Tex. Crim. App. 1988) ................................................................25

Ramirez v. State,

802 S.W.2d 674 (Tex. Crim. App. 1990) ................................................................25

Rankin v. State,

974 S.W.2d 707 (Tex. Crim. App. 1996) ................................................................21

Rodriguez v. State,

129 S.W.3d 551 (Tex. App.—Houston [1st DIst.] 2003, pet. ref’d). ................. 15, 16

vi

Swearingen v. State,

101 S.W.3d 89 (Tex. Crim. App. 2003) ....................................................................8

Theus v. State,

816 S.W.2d 773 (Tex. App.—Houston [14th Dist.] 1991 reversed by 845 S.W.2d 874

overruled by 845 S.W.2d 874 (Tex. Crim. App. 1992). ...........................................14

Theus v. State,

845 S.W.2d 874 (Tex. Crim. App. 1992) ................................................... 14, 16, 17

Villani v. State,

116 S.W.3d 297 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d.) ....................7, 8

Wheeler v. State,

67 S.W.3d 879 (Tex. Crim. App. 2002) ..................................................................26

Williams v. State,

301 S.W.3d 675 (Tex. Crim. App. 2009). ...............................................................20

Wilson v. State,

71 S.W.3d 346 (Tex. Crim. App. 2002). .......................................................... 12, 18

Wyatt v. State,

23 S.W.3d 18 (Tex. Crim. App. 2000) ......................................................................8

STATUTES

TEX. PENAL CODE § 29.02 (West 2011). ......................................................................9

TEX. PENAL CODE § 29.03(a)(2) (West 2011). ..............................................................9

RULES

TEX. R. APP. P. 9.4(g) .................................................................................................. i

TEX. R. APP. P. 33.01(a)(1) (2) ............................................................................ 12, 18

TEX. R. APP. PROC. 38.1(i). ........................................................................................ 13

TEX. R. APP. P. 38.2(a)(1)(A)........................................................................................ i

TEX. R. APP. P. 39.1 ..................................................................................................... i

TEX. R. APP. PROC. 44.2(a). .......................................................................................30

vii

TEX. R. EVID. 404(b) .................................................................................................20

TEX. R. EVID. 609(b). ................................................................................................14

viii

TO THE HONORABLE COURT OF APPEALS:

STATEMENT OF THE CASE

Appellant was charged with aggravated robbery, and in one enhancement

paragraph, was alleged to have been previously convicted of possession of a

controlled substance (C.R. 6). Appellant entered a plea of not guilty to the offense,

and a plea of true to the enhancement paragraph (R.R.III 11-12, R.R.IV 6; C.R. 95).

The jury found appellant guilty, and sentenced him to confinement for 43 years in the

Institutional Division of the Texas Department of Criminal Justice (R.R.III 123-124,

R.R.V 4; C.R. 95). A written notice of appeal was timely filed (C.R. 98-100).



STATEMENT OF FACTS

The State challenges all factual assertions in appellant’s brief and presents the

following account of the facts.

Keanthony Wilson was still in high school on September 7, 2013, when he was

hanging out with his friend Clandre Celestine at a carnival at Greenspoint Mall

(R.R.III 15-16, 40). The carnival was closing, so the boys started walked back towards

their car (R.R.III 17, 41). Appellant, Devon Hensley, approached the boys as they

were walking to their car (R.R.III 19, 41). Appellant asked Keanthony the time, and as

Keanthony was looking up from his phone, appellant “put the gun up to [his] hip”

(R.R.III 19-20, 41). Appellant then demanded Keanthony’s keys and wallet (R.R.III

20, 41-42). Neither boy had any money, so appellant ripped Keanthony’s keys from

his pants pocket, opened the car door and started the car, then got back out of the car

(R.R.III 21, 28). Once appellant was out of the car he searched both boys for money,

discovered they had none, then took their shoes, Clandre’s jacket, and Keanthony’s

cell phone (R.R.III 21, 28, 41-43). Appellant then got into Keanthony’s car, a blue PT

Cruiser, and drove off with their possession (R.R.III 21, 43). The boys then ran to

find police at the carnival (R.R.III 21-22, 34, 43). The boys were very scared (R.R.III

34). Keanthony gave police a description of appellant, and the license plate of the

vehicle (R.R.III 22, 34-36). The police wrote a report, and then turned the case over

to robbery detectives (R.R.III 35).

The vehicle was listed as stolen in a law enforcement database (R.R.III 36). A

few days later a detective called and told Keanthony that his car had been found

(R.R.III 22, 53-54). Appellant was driving the vehicle when it was located by Deputy

Kenneth Taylor (R.R.III 54). Appellant was taken into custody once the vehicle was

confirmed stolen (R.R.III 55). Appellant claimed that he did not know who owned

the vehicle (R.R.III 55). Once appellant was arrested and taken to jail he told Deputy

Taylor that he “[knew the police] got [him] on the robbery[,]…can [he] give [Deputy

Taylor] information to get out of the robbery charge?” (R.R.III 56-57). Deputy Taylor

told appellant to give the information to the Houston Police Department (R.R.III 57).

Keanthony and Clandre subsequently identified appellant in a photo array (R.R.III 24-

25, 44, 67, 69, 71).

2

At trial, appellant testified in his own defense. Appellant admitted to going to

prison for possession of a controlled substance with intent to deliver and also having

a prior theft conviction (R.R.III 75-76, 82). Appellant claimed to know Keanthony

and Clandre (R.R.III 74-75). Appellant admitted to being a drug dealer who sold

drugs to Clandre (R.R.III 76). Appellant claimed that Clandre owed him $700 (R.R.III

76). Appellant claimed the encounter at Greenspoint Mall was a planned meeting

where appellant was supposed to collect on the drug debt that Clandre owed him

(R.R.III 77). Appellant admitted that he did not think that Keanthony knew about the

meeting (R.R.III 77). Appellant claimed that Clandre could not pay up on the debt so

Clandre agreed to give him a the PT Cruiser to satisfy the debt (R.R.III 78). Appellant

denied having or using a weapon (R.R.III 79). Appellant testified that after he got the

car he sold it to James Ganther, a friend (R.R.III 79). James Ganther never testified to

at trial to corroborate appellant’ claim. Appellant stated he was renting the car from

James to run an errand when he was arrested in the car a few days later (R.R.III 80).

Appellant admitted making the statement to Deputy Taylor about being caught on the

robbery charge, but claimed it was just because he was scared (R.R.III 80-81, 88-89).

In rebuttal, the State offered the testimony of William McLaughlin to give more

details regarding the day appellant was arrested. On September 9, 2013, William

McLaughlin had an early meeting in the Greenspoint area (R.R.III 92-93). He arrived

early so he parked in the parking lot of Greenspoint Mall and sat in his car preparing

for the meeting (R.R.III 93). He got out of the car to get his briefcase from the trunk

3

and a noticed a small blue car pull up behind him (R.R.III 94-95). Appellant, who was

driving the blue car, asked William if he could “help [him] out?” (R.R.III 95). William

gave directions as requested by appellant (R.R.III 95). William looked back at

appellant and saw that appellant had a gun pointed at his head and demanded

“everything [William] had” (R.R.III 96). William handed over his wallet and cell phone

and then told appellant he could take whatever he wanted out of his vehicle (R.R.III

96). William said “please, don’t shoot me. I have a family.” (R.R.III 96). Appellant

then took the computer bag, and headed back to his car, and when he did that

William took the opportunity and jumped in his car, engaged appellant in a “three-

second stare down” in his side mirror, and then took off (R.R.III 97).

Once William drove down the road a bit he flagged down a firetruck who took

him the fire station where he used the phone to call police (R.R.III 98). When William

arrived home few hours later, a robbery detective was on the phone, and said that he

had a suspect and wanted to meet with William (R.R.III 99). William identified

appellant in a photo array (R.R.III 102). William’s credit cards, laptop computer,

driver’s license, and computer bag were found when appellant was arrested (R.R.III

102-104). The credit cards and driver’s license were in appellant’s right front pocket

when he was arrested by Deputy Taylor (R.R.III 107). Appellant claimed that he

found these items in the street on Ella Boulevard (R.R.III 107). The laptop was in

Keanthony’s PT cruiser that appellant was driving (R.R.III 107).



4

SUMMARY OF THE ARGUMENT

The evidence of appellant’s guilt is legally sufficient because appellant courts

are not permitted to re-evaluate the credibility of witnesses because that is the sole

province of the jury. Appellant’s claim that the Keanthony and Clandre’s testimony

should now not be believed, turns the standard of review on its head. Further, the

claim that the evidence is legally insufficient because of an alleged drug debt flies in

the face of caselaw and the Texas Penal Code.

Appellant failed to preserve error arising from the trial court’s denial of his

Theus motion because appellant elicited questions regarding his criminal history, and

then failing to object when the State also elicited questions regarding appellant’s

criminal history. Additionally, appellant has failed to adequately brief this point of

error by failing to cite to the record and cite to legal authority for the proposition that

the trial court erred in overruling appellant’s Theus motion. Alternatively, denial of

appellant’s motion to testify free from impeachment was not an abuse of discretion

because there was great probative value in the prior convictions to impeach

appellant’s testimony because his prior convictions were recent and involved

deception. Further, there was very little prejudicial effect from the jury hearing that

appellant had been convicted of possession of a controlled substance with intent to

deliver since appellant’s defense was that he did not commit an aggravated robbery,

but rather was given the vehicle to pay a drug debt.

5

The trial court did not error in admitting evidence of an extraneous aggravated

robbery because appellant opened the door to the extraneous aggravated robbery by

testifying that he sold the vehicle and had no knowledge of the items in the vehicle

when he, in fact, used the vehicle in an aggravated robbery and the items found in the

vehicle were taken in the aggravated robbery, the trial court did not abuse its

discretion in admitting evidence of the aggravated robbery.

The trial court committed no error in failing to sustain appellant’s objection to

the Prosecutor’s argument that appellant made up nicknames for Keanthony and

Clandre because it the argument was a reasonable inference from the evidence.



REPLY TO FIRST POINT OF ERROR

Appellant argues that the evidence supporting the verdict is insufficient because

Keanthony and Clandre should were not credible witnesses and no theft occurred

because appellant was collecting on a debt. However, the evidence of appellant’s guilt

for aggravated robbery is legally sufficient because appellate courts are not permitted

to re-evaluate the credibility of witnesses because that is the sole province of the jury.

Appellant’s claim that the Keanthony and Clandre’s testimony should now not be

believed, turns the standard of review on its head. Further, the claim that the evidence

is legally insufficient because of an alleged drug debt flies in the face of caselaw and

the Texas Penal Code. Appellant’s point of error should be overruled.

6

Standard of Review

The Court of Criminal Appeals has held that legal sufficiency is the only

standard a reviewing court should apply in evaluating whether the evidence proving

each element of the charged offense has been proven beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)(plurality op.); Pomier v.

State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

Accordingly, this Court must apply a legal-sufficiency standard when addressing

appellant’s sufficiency arguments. Brooks, 323 S.W.3d at 912; Pomier, 326 S.W.3d at

378.

Under a legal sufficiency review, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, 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 (1979); Conner v. State, 67 S.W.3d 192, 197

(Tex. Crim. App. 2001). This Court considers all the evidence and the reasonable

inferences therefrom. Conner, 67 S.W.3d at 197; Alvarado v. State, 912 S.W.2d 199, 207

(Tex. Crim. App. 1995). The jury, as the trier-of-fact, “is the sole judge of the

credibility of the witnesses and of the strength of the evidence.” Fuentes v. State, 991

S.W.2d 267, 271 (Tex. Crim. App. 1999); Villani v. State, 116 S.W.3d 297, 301 (Tex.

App.—Houston [14th Dist.] 2003, pet. ref’d.). This Court should not re-evaluate the

weight and credibility of the evidence and thereby substitute its judgment for that of

7

the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Villani,

116 S.W.3d at 301.

Reconciliation of conflicts in the evidence is within the exclusive province of

the jury, and the jury may choose to believe some testimony and disbelieve other

testimony. Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). There is a

presumption that conflicted facts were resolved in favor of the prosecution. Matson v.

State, 819 S.W.2d 839, 847 (Tex. Crim. App. 1991). Each fact need not point directly

and independently to the guilt of appellant, as long as the combined and cumulative

force of all the incriminating circumstances is sufficient to support the conviction.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007); Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct

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

sufficient to establish guilt. Hooper, 214 S.W.3d at 13. The question is not whether a

rational jury could have entertained a reasonable doubt, but whether it necessarily

would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003).

The “cumulative force” of all circumstantial evidence can be sufficient for a jury to

find the accused guilty beyond a reasonable doubt. See Powell v. State, 194 S.W.3d 503,

507 (Tex. Crim. App. 2006).

Analysis

A person commits robbery when “in the course of committing theft…and with

intent to obtain or maintain control of the property, he…intentionally or knowingly

8

threatens or places another in fear of imminent bodily injury or death.” TEX. PENAL

CODE § 29.02 (West 2011). A person commits aggravated robbery when he “commits

robbery…[and] uses or exhibits a deadly weapon…” TEX. PENAL CODE § 29.03(a)(2)

(West 2011). In the present case, appellant was charged with, while “in the course of

committing theft of property owned by Keanthony Wilson, and with the intent to

obtain and maintain control of the property, intentionally and knowingly threaten and

place Keanthony Wilson in fear of imminent bodily injury and death” and in doing so

“[used and exhibited] a deadly weapon,…a firearm.” (C.R. 6).

Appellant argues that the evidence is legally insufficient because the “proof

offered by the State was insufficient to establish beyond a reasonable doubt that

[a]ppellant was in the course of committing theft of property owned by Keanthony

Wilson when he came into possession of Wilson’s vehicle.”1 Appellant attacks the

credibility of the Keanthony and Clandre and claims that no theft occurred because

the entire incident was “the redemption of a drug debt owed to him by [Clandre].”2 At

trial, only appellant claimed that a drug debt existed, and that the transfer of the

vehicle to appellant was an agreed upon transaction. Appellant’s claim that his

testimony should now, on appeal, be believed, and that Keanthony and Clandre’s

testimony be discredited turns the standard of review on its head. See Dewberry, 4

S.W.3d at 740.

1

Appellant’s brief at 14.

2

Appellant’s brief at 10-12.

9

Additionally, appellant is essentially arguing that his self-serving claim that

Clandre owed drug money to him somehow vitiates the fact that he demanded and

then took property from Keanthony and Clandre at gunpoint. To the contrary, many

cases have consistently held that “[b]eing in the position of a creditor does not endow

the creditor with the right to commit mayhem to collect a debt which is owed.” Pierce

v. State, 218 S.W.3d 211, 215 (Tex. App.—Texarkana 2007, pet. ref’d).

Appellant’s argument that he was collecting a debt flies in the face of the

holding in Crawford that a creditor who assaults a debtor to collect an alleged debt

commits the offense of robbery, and “[t]o hold otherwise would be establishing a

dangerous doctrine, since it would authorize the accused not only to decide his own

injury or damage but to enforce the collection thereof by force and violence[, and that

is] contrary to the policy of our form of government.” Crawford v. State, 509 S.W.2d

582, 584 (Tex. Crim. App. 1974). Similarly in Collins, the defendant challenged the

sufficiency of the evidence to sustain a conviction for aggravated robbery when the

defendant shot his ex-girlfriend to collect on a $30 debt she allegedly owed him for

car parts. Collins v. State, 800 S.W.2d 267, 267-268 (Tex. App.—Houston [14th Dist.]

1990, no pet.). The court stated that the shooting the alleged debtor was not a

justification or defense recognized by the Texas Penal Code. Id. at 269. The court held

that the use of force to collect on a debt was prohibited. Id.; See also Pierce v. State, 218

S.W.3d 211, 215 (Tex. App.—Texarkana 2007, pet. ref’d) (holding that the evidence

that the defendant committed aggravated robbery was sufficient despite the fact that

10

the defendant and two other men went to the complainant’s house to collect on a

debt and the complainant gave the men money and a check to stop the assault); See

also Armstrong v. State, 179 S.W.3d 84, 87-88 (Tex. App.—Fort Worth 2005, no pet.)

(holding that a creditor who collects a debt by force can commit aggravated robbery).

The evidence of appellant’s guilt for aggravated robbery is legally sufficient

because appellant courts are not permitted to re-evaluate the credibility of witnesses

because that is the sole province of the jury. Appellant’s claim that the Keanthony and

Clandre’s testimony should now not be believed, turns the standard of review on its

head. Further, the claim that the evidence is legally insufficient because of an alleged

drug debt flies in the face of caselaw and the Texas Penal Code. Appellant’s point of

error should be overruled.

REPLY TO SECOND POINT OF ERROR

Appellant argues that the trial court erred in denying his Theus motion to testify

free from impeachment. However, appellant failed to preserve error to his second

point of error by eliciting questions regarding his criminal history, and then failing to

object when the State also elicited questions regarding appellant’s criminal history.

Additionally, appellant has failed to adequately brief this point of error by failing to

cite to the record and cite to legal authority for the proposition that the trial court

erred in overruling appellant’s Theus motion.

11

Denial of appellant’s motion to testify free from impeachment was not an

abuse of discretion because there was great probative value in the prior convictions to

impeach appellant’s testimony because his prior convictions were recent and involved

deception. Further, there was very little prejudicial effect from the jury hearing that

appellant had been convicted of possession of a controlled substance with intent to

deliver since appellant’s defense was that he did not commit an aggravated robbery,

but rather was given the vehicle to pay a drug debt.

Preservation of Error

To preserve error on appeal, a party must first have presented to the trial court

a timely request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or motion.

TEX. R. APP. P. 33.01(a)(1); Layton v. State, 280 S.W.3d 235, 238-39 (Tex. Crim. App.

2009). The error alleged on appeal must correspond to the objection made at trial.

Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002). Further, the trial court

must have ruled on the request, objection, or motion, or the complaining party must

have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2); Mendez v.

State, 138 S.W.3d 334, 341 (Tex. Crim. App. 2004). A reviewing court should not

address the merits of an issue that has not been preserved for appeal. Ford v. State, 305

S.W.3d 530, 532 (Tex. Crim. App. 2009).

Appellant filed a pre-trial Theus motion attempting to exclude any mention of

appellant’s criminal history (C.R. 65-66). Appellant’s motion was overruled (R.R.III

12

60-61). Appellant failed to preserve error not only by failing to object when the State

questioned appellant about his prior convictions, but also by trial counsel for

appellant eliciting testimony from appellant regarding his criminal history (R.R.III 75-

76, 82). Appellant’s failure to object to appellant’s criminal history when the testimony

was elicited and eliciting it himself failed to preserve error for appellate review. See

Etheridge v. State, 903 S.W.2d 1, 14 (Tex. Crim. App. 1994); Hudson v. State, 675 S.W.2d

507, 511 (Tex. Crim. App. 1984). Any alleged error in the admission of evidence is

cured where the same evidence comes in elsewhere without objection. Ethington v.

State, 819 S.W.2d 854, 858 (Tex. Crim. App. 1991).

Additionally, on appeal, appellant’s only argument that the trial court erred in

overruling his Theus motion is that “[a]ppellant also submits the court abused its

discretion when it denied [a]ppellant’s Motion to Testify Free of Impeachment and as

a result, that he is entitled to a new trial.”3 Appellant does not cite to the record or any

authority in support of his argument, and thus appellant’s second point of error has

been inadequately briefed. TEX. R. APP. PROC. 38.1(i). Appellant’s point of error

should be overruled.

Standard of Review

“The determination of the admissibility of evidence is within the sound

discretion of the trial court and will not be disturbed on appeal absent a clear abuse of

discretion.” Theus v. State, 816 S.W.2d 773, 774 (Tex. App.—Houston [14th Dist.] 1991

13

reversed by 845 S.W.2d 874 overruled by 845 S.W.2d 874, 880-881 (Tex. Crim. App.

1992). A trial court abuses its discretion when its decision to admit a prior conviction

lies outside the zone of reasonable disagreement. Theus v. State, 845 S.W.2d 874, 881

(Tex. Crim. App. 1992); Morris v. State, 67 S.W.3d 257, 262 (Tex. App.—Houston [1st

Dist.] 2001, pet ref’d).

Analysis

Texas Rule of Evidence 609 provides that “[f]or the purpose of attacking the

credibility of a witness, evidence that the witness has been convicted of a crime shall

be admitted if elicited from the witness or established by public record but only if the

crime was a felony or involved moral turpitude, regardless of the punishment, and the

court determines that the probative value of admitting this evidence outweighs its

prejudicial effect to a party.” However, such evidence is not admissible if more than

ten years has passed since the date of the conviction or the date of release from

confinement, whichever is later, unless the court determines, in the interests of justice,

that the probative value of the conviction supported by specific facts and

circumstances substantially outweighs its prejudicial effect. TEX. R. EVID. 609(b).

In the present case, appellant filed a pre-trial “MOTION TO TESTIFY FREE

FROM IMPEACHMENT” (C.R. 65-66). The trial court denied the motion (R.R.III

60-61). In denying the motion, the trial court stated that since appellant’s 2010

conviction for possession of a controlled substance “[i]t appears that he has not

3

Appellant’s brief at 17.

14

conformed his behavior, and they are recent convictions.” (R.R.III 61). The trial court

then found that “the probative value in terms of credibility, obviously, is significant

here [and] the probative value outweighs any prejudicial effect.” (R.R.III 61).

Appellant then testified that the conviction was for possession of a controlled

substance with intent to deliver, and he was not released from prison until May 13,

2013, a mere four months prior to the offense date of the present case (R.R.III 75,

C.R. 6).

The record does not indicate the conviction date for appellant’s prior theft

conviction. However, the trial court could have considered the possession of a

controlled substance with intent to deliver to have removed the taint of any

remoteness from the theft conviction. See Lucas v. State, 791 S.W.2d 35, 51 (Tex. Crim.

App. 1989) (stating that “[evidence of the lack of reformation or subsequent felony

and certain misdemeanor convictions may then cause the prior conviction to fall

outside the general rule and not be subject to the objection of remoteness” and that

“[the question is on of discretion for the trial court”); See also Rodriguez v. State, 129

S.W.3d 551, 559 (Tex. App.—Houston [1st DIst.] 2003, pet. ref’d).

Appellant argues that “the court abused its discretion when it denied

[a]ppellant’s Motion to Testify Free of Impeachment[,] and as a result, that he is

entitled to a new trial.”4 In Theus, the Court of Criminal Appeals set out a non-

exclusive list of factors trial courts should weigh in determining whether the

15

prejudicial effect of a prior conviction substantially outweighs its probative value.

Theus, 845 S.W.2d at 880-81. Such factors include the impeachment value of the prior

crime, the recentness of the conviction in relation to the offense date of the present

case, the similarity of the prior conviction to the present offense, the importance of

the witness’s testimony, and the importance of the witness’s credibility. The

proponent of the admission of the prior conviction has the burden of showing that

any prejudicial effect is not substantially outweighed by the probative value. Id. at 880.

In apply these factors to the present case it is apparent that the trial court did

not abuse its discretion in finding that the probative value of appellant’s prior

convictions weighed heavily in favor of admission. It is important to note that violent

offenses carry a more prejudicial effect, and neither of appellant’s prior convictions

were for violent offenses. Id. at 881. Rather, appellant’s prior convictions were theft

and possession of a controlled substance with intent to deliver (R.R.III 75-76). The

theft conviction is indicative of deception. Rodriguez, 129 S.W.3d at 559. Additionally,

appellant’s defense was that he did not take the vehicle by force, but was given the

vehicle as payment for a drug debt, thus the jury hearing that he had previously been

convicted of possession of a controlled substance with intent to deliver had little to

no prejudicial effect because it lent credibility to his defense.

Regarding the temporal element, appellant had only been out of prison for four

months before committing this aggravated robbery (R.R.III75-75, C.R. 6). This clearly

4

Appellant’s brief at 17.

16

indicates a pattern of behavior of running afoul of the law, and thus favors

admissibility. See Davis v. State, 259 S.W.3d 778, 783 (Tex. App.—Houston [1st Dist.]

2007, pet. ref’d); Theus, 845 S.W.2d at 881. The charged offense is dissimilar from his

prior convictions, and thus also favors admissibility because it creates a decreased risk

of prejudice. Davis, 259 S.W.3d at 783.

Additionally, regarding the importance of the witness’s testimony and

credibility, “when the case involves the testimony of only the defendant and the

State’s witnesses…the importance of the defendant’s credibility and testimony

escalates” and “so will the need to allow the State an opportunity to impeach the

defendant’s credibility.” Id. at 784; See also Theus, 845 S.W.2d at 881.

All factors favor admission of appellant’s prior theft and possession of a

controlled substance with intent to deliver convictions. Based on the Theus factors, the

facts and circumstances of the present case and the nature and recentness of

appellant’s prior convictions, there was great probative value to their admission and

de minimis, if any, prejudicial effect. The trial court did not abuse its discretion in

denying appellant’s Theus motion. Theus, 845 S.W.2d at 881; Morris, 67 S.W.3d at 262.

Appellant’s point of error should be overruled.

REPLY TO THIRD AND FOURTH POINTS OF ERROR

Appellant argues that the trial court abused its discretion in allowing testimony

and photographic exhibits regarding an extraneous aggravated robbery committed by

17

appellant the day he was arrest. However, appellant opened the door to the

extraneous aggravated robbery by testifying that he sold the vehicle and had no

knowledge of the items in the vehicle when he, in fact, used the vehicle in an

aggravated robbery and the items found in the vehicle were taken in the aggravated

robbery, the trial court did not abuse its discretion in admitting evidence of the

aggravated robbery.

Preservation of Error

To preserve error on appeal, a party must first have presented to the trial court

a timely request, objection, or motion that states the specific grounds for the desired

ruling if they are not apparent from the context of the request, objection, or motion.

TEX. R. APP. P. 33.01(a)(1); Layton, 280 S.W.3d at 238-39. The error alleged on appeal

must correspond to the objection made at trial. Wilson, 71 S.W.3d at 349. Further, the

trial court must have ruled on the request, objection, or motion, or the complaining

party must have objected to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a)(2);

Mendez, 138 S.W.3d at 341. A reviewing court should not address the merits of an

issue that has not been preserved for appeal. Ford, 305 S.W.3d at 532.

Appellant failed to preserve error to the admission of the extraneous

aggravated robbery by neither objecting to the trial court’s finding that appellant

opened the door to extraneous aggravated robbery, nor objecting to the testimony of

William McLaughlin, the complainant in the extraneous aggravated robbery (R.R.III

91-92). See Etheridge, 903 S.W.2d at 14; Hudson, 675 S.W.2d at 511. Any alleged error in

18

the admission of evidence is cured where the same evidence comes in elsewhere

without objection. Ethington, 819 S.W.2d at 858.

Appellant filed a pre-trial motion in limine seeking to exclude his prior

convictions and extraneous offenses (C.R. 68-69). In additional to offering William’s

testimony, the State offered exhibits 7 through 13 (photographs of William’s

possessions taken in the aggravated robbery that occurred on the September 9th), and

appellant stated “Your Honor, I have no objection to State’s Exhibits No. 8, No. 9,

No. 11, No. 12, and No. 13…I object to Exhibits No. 7 and 10 because they have

extraneous information on them.” (R.R.III 102-103). Exhibits 7 through 13 were

offered during William’s testimony, the complainant in the extraneous aggravated

robbery, and thus all pertained to the extraneous aggravated robbery (R.R.III 102-

103). State’s exhibit 7 clearly shows William’s name on three credit cards (R.R.VI 15).

State’s exhibits 8, 9, 11, 12, and 13 are photographs of his laptop computer stolen in

the aggravated robbery (R.R.VI 16-17, 19-21). Exhibits 7 and 10 clearly have William’s

name on them, while testimony from William was necessary to connect William to the

property depicted in State’s exhibits 8, 9, 11, 12, and 13, however, all these exhibits

depict items found in appellant’s possession when he was arrested and items that

William testified were taken in the aggravated robbery (R.R.III 102-104, 107). Since

appellant failed to object to all the exhibits pertaining to the extraneous aggravated

robbery, and failed to object to William’s testimony, he waived any error arising from

19

admission of evidence of aggravated robbery generally, and State’s exhibit 7 and 10

specifically. Id.

Standard of Review

When reviewing a trial court’s decision on the admissibility of evidence the

proper standard of review is abuse of discretion. Martinez v. State, 327 S.W.3d 727, 736

(Tex. Crim. App. 2010). An abuse of discretion only occurs when a decision “lies

outside the zone of reasonable disagreement.” Id.; Casey v. State, 215 S.W.3d 870, 879

(Tex. Crim. App. 2007). The trial court’s decision is generally within this zone when

the extraneous offense is relevant, and not for the purpose of showing criminal

propensity, and the probative value is not substantially outweighed by prejudice,

confusion, and is not misleading to the jury. De La Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009). The trial court’s decision does not constitute an abuse of

discretion if the decision can be upheld on any theory of law. Id.

Analysis

Rule 404(b) of the Texas Rules of Evidence prohibits admission of extraneous

offenses to prove conformity or propensity to commit bad acts, but allows admission

to show “motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake.” TEX. R. EVID. 404(b) Devoe v. State, 354 S.W.3d 457, 469 (Tex.

Crim. App. 2011). Rebutting a defense theory is also a proper reason to admit

evidence of an extraneous act. Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim. App.

2009). Exclusion of evidence under Rule 404(b) is only proper when there is no other

20

reason for exposing the jury to this evidence other than to show the accused’s bad

character. Rankin v. State, 974 S.W.2d 707, 709 (Tex. Crim. App. 1996).

Appellant argues that “the introduction of an extraneous offense allegedly

occurring in the same geographic area as the allegation on trial, was nothing more

than an effort to establish [a]ppellant’s [criminal] character in order to show that he

acted in conformity therewith.”5 Appellant further complains that “[t]he appellate

record fails to establish that the trial court conducted a balancing test as required by

Montgomery and Rule 403 if the Texas Rules of Evidence.”6 Appellant

complains about the introduction of the extraneous aggravated robbery in his third

point of error and then complains specifically State’s exhibits 7 and 10 in his fourth

point of error.7

In the present case, claimed that he knew Keanthony and Clandre because he

lived in the same neighborhood as Keanthony and sold drugs to Clandre (R.R.III 75-

76). Appellant claimed that the aggravated robbery was not a robbery at all, but was

instead, an arranged meeting where Keanthony and Clandre had agreed to pay

Clandre’s drug debt to appellant with a vehicle (R.R.III 76-79). Appellant then claimed

after getting the vehicle, he sold it to a man named James Ganther (R.R.III 79-80).

Then, three days later when he was arrested, appellant claimed that he just happened

to be borrowing the car from James to run errands (R.R.III 80). Appellant then stated

5

Appellant’s brief at 20.

6

Appellant’s brief at 20.

21

that he only made the comment to police that “they got [him] for this robbery”

because he was “nervous” and assumed that Keanthony and Clandre reported the

vehicle stolen because when they gave it to him becuase they did not give appellant

the title (R.R.III 79-80). On cross examination, appellant detailed how he sold the

vehicle to James Ganther on September 8th, the day before appellant was arrested, for

$500 (R.R.III 86). On September 9th, appellant claimed that he picked up the vehicle a

mere ten minutes before he was arrested in it (R.R.III 86-87). On direct examination,

appellant claimed that he sold the car to a friend, and then three days later when

appellant was arrested in the car, he had just borrowed the vehicle from that same

friend to run errands (R.R.III 79-80). Regarding the day of appellant’s arrest the

following dialogue occurred:

Q. So, you were picked up right after you borrowed that car?

A. Yes, ma’am.

Q. So, anything that happened earlier that day was not you?

A. No, ma’am.

Q. And were there some things in the car that you didn’t know how they got there?

A. Yes, ma’am. It had some things in the car, but it wasn’t my car. It wasn’t in my

possession. I didn’t worry about it.

Q. So, you don’t know why those things were in the car?

A. No, ma’am.

7

Appellant’s brief at 17-21.

22

Q. Officer goes up and talks to you, right? He had his dog with him in the car, didn’t

he?

A. Yes, ma’am.

Q. Did he ask you where you got the car?

A. Yes, ma’am.

Q. And you told him you got it from a friend at Morgan Bay Apartments, right?

A. Yes, ma’am.

Q. And that was the James Ganther that you had just gotten the car from, right?

A. Yes, ma’am.

Q. Is that fairly close to the gas station where you were pulled over?

A. Yes, ma’am. Like about one mile, miles and a half away.

Q. You hadn’t gone to Greenspoint Mall earlier that day?

A. No, ma’am.

Q. And after you got arrested—first of all, were you surprised when they had told you

the car was reported stolen?

A. No, ma’am.

Q. Even though, according to your testimony, they had freely given you the car?

A. Yes, ma’am.

Q. And you told the officer, “I know you’ve got me for this robbery,” right?

A. Yes, ma’am.

Q. So, you knew that we had the evidence on you for this aggravated robbery?

23

A. He had- - I didn’t know that he had me for aggravated robbery, but he told me that

the car token (sic) in an aggravated robbery.

Q. So, if you didn’t know that he had you for an aggravated robbery, you still decided

to tell him, I know you got me for this robbery?

A. Because he told me the car was tooken (sic) in an aggravated robbery.

Q. And you said, I know you’ve got me for this robbery, but can I give you some

information – can I give you some more, I’m sorry, let me pull up the right quote.

You say, “Can I give you some information to get out of this robbery charge,” right?

A. Yes, ma’am.

Q. So, you told him I know you’ve got me for this robbery, right?

A. Yes, ma’am.

Q. Just to be clear, you picked up that car just minutes earlier?

A. Yes, ma’am.

Q. You weren’t driving it earlier that day?

A. No, ma’am.

Q. And you weren’t at Greenspoint Mall earlier that day?

A. No, ma’am.

(R.R.III 87-90).

After this testimony, the trial court found that appellant opened the door to the

extraneous aggravated robbery (R.R.III 91). If a defendant testifies to a general

statement of good conduct during a relevant period of time, he may open the door by

24

leaving a false impression with the jury about a relevant act or character trait. Daggett v.

State, 187 S.W.3d 444, 453 (Tex. Crim. App. 2005) (quoting United States v. Antonakeus,

255 F.3d 714, 724-25 (9th Cir. 2001). “Evidence of an extraneous act that tends to

rebut such testimony may be admissible to impeach the defendant.” Id. at 452; See also

Ramirez v. State, 802 S.W.2d 674, 676 (Tex. Crim. App. 1990) (when a witness leaves a

false impression concerning matters relating to his or her credibility, the opposing

party is allowed to correct the false impression); Prescott v. State, 744 S.W.2d 128, 131

(Tex. Crim. App. 1988) (defendant who a creates false impression during direct

examination is commonly said to have “opened the door” to inquiry by the State as to

the validity of his testimony).

In the present case, appellant opened the door to the extraneous aggravated

robbery by claiming that he sold the car the day after he acquired it, just borrowed the

car minutes before he was arrested by police, and that the items found in the vehicle

were not his and he had no knowledge of where those items came from (R.R.III 75,

79-80, 87-90). This left a false impression with the jury because appellant had actually

used the car a few hours earlier that day to commit another aggravated robbery in

which the complainant identified appellant as the man who demanded his possession

at gun point, and the items found in the vehicle were items taken in that aggravated

robbery (R.R.III 94-97, 102). Additionally, appellant disavowed knowledge of the

items in the vehicle claiming that he did not know anything about them because they

25

were in a vehicle that did not belong to him, when the reality was that some of those

items were actually found in appellant’s pocket (R.R.III 87-90, 107).

Since appellant chose to testify and introduce his version of events to the jury,

the State was entitled to reply in kind. Wheeler v. State, 67 S.W.3d 879, 855 (Tex. Crim.

App. 2002); Kincaid v. State, 534 S.W.2d 340, 342 (Tex. Crim. App. 1976) (generally, a

party who introduces a version of events to the jury, invites the other side to respond

to that evidence). Since appellant opened the door to the extraneous aggravated

robbery by testifying that he sold the vehicle and had no knowledge of the items in

the vehicle when he, in fact, used the vehicle in an aggravated robbery and the items

found in the vehicle were taken in the aggravated robbery, the trial court did not

abuse its discretion in admitting evidence of the aggravated robbery.

REPLY TO FIFTH POINT OF ERROR

Appellant argues that the trial court erred when it failed to sustain appellant’s

objection to the Prosecutor’s argument that appellant made up nicknames for

Keanthony and Clandre. However, appellant admitted to making up a nickname for

Clandre, and thus it was a reasonable inference from the evidence that he made up a

nickname for Keanthony as well.

Standard of Review

The standard of review for improper jury argument is abuse of discretion.

Powell v. State, 63 S.W.3d 435, 438 (Tex. Crim. App. 2001). “It is the duty of trial

26

counsel to confine their arguments to the record; reference to facts that are neither in

evidence nor inferable from the evidence is therefore improper.” Brown v. State, 270

S.W.3d 564, 570 (Tex. Crim. App. 2008) (quoting Alejandro v. State, 493 S.W.2d 230, 231

(Tex. Crim. App. 1973). “Thus, proper jury argument generally falls within one of

four general areas: (1) summation of the evidence; (2) reasonable deduction from the

evidence; (3) answer to argument of opposing counsel; and (4) plea for law

enforcement.” Id. (citing Alejandro, 493 S.W.2d at 231; Guidry v. State, 9 S.W.3d 133,

154 (Tex. Crim. App. 1999). “A prosecutor may not use closing arguments to present

evidence that is outside the record.” Freeman v. State, 340 S.W.3d 717, 728 (Tex. Crim.

App. 2011), cert. denied, 132 S.Ct. 1099. “Improper references to facts that are neither

in evidence nor inferable from the evidence are generally designed to arouse the

passion and prejudice of the jury, and as such, are inappropriate.” Id. (citing Borjan v.

State, 787 S.W.2d 53, 57 (Tex. Crim. App. 1990)).

Analysis

The four permissible areas of jury argument are the summation of the evidence,

reasonable deduction from the evidence, responding to the argument of opposing

counsel, and plea for law enforcement. Mijores v. State, 11 S.W.3d 253, 257 (Tex.

App.—Houston [14th Dist.] 1999, no pet.). An argument outside of these four areas is

erroneous. Felder v. State, 848 S.W.2d 85, 94-95 (Tex. Crim. App. 1992). However,

wide latitude is given to counsels when making inferences from the evidence, so long

27

as they are reasonable and in good faith. Gaddis v. State, 753 S.W.2d 396, 398 (Tex.

Crim. App. 1988).

In closing arguments, the prosecutor stated, regarding reasons appellant’s

testimony should not be believed, “[t]here's been no evidence that [Keanthony and

Clandre] ever used drugs in their life. And he makes up nicknames for them, CC and

K. No one calls those kids that” (R.R.III 119). Appellant objected that this argument

was “outside the evidence” (R.R.III 119). The trial court overruled the objection

(R.R.III 119). Appellant argues that the prosecutor’s argument “crossed the line and

injected her own belief as to what the evidence was or was not.”8

During appellant’s testimony, he stated that he refers to Clandre as “CC”

(R.R.III 81). Then, the following dialogue occurred:

Q. Does anybody else call him CC?

A. I don’t know.

Q. Okay. If you heard that his friends call him Clay, would that surprise you?

A. Well, nah, not really.

Q. But you made up your own nickname for him, CC?

A. Yes, ma’am.

Q. Rather than going with his commonly used Clay?

A. Well, his street name is CC.

(R.R.III 81-82).

28

Additionally, during appellant’s direct examination, appellant stated:

A. I don’t think he did because I know it just delt with Mr. K like that, but I used to

deal with CC on a regular basis.

Q. And so you know him as k?

A. Yes, ma’am.

Q. For Keanthony?

A. Yes, ma’am.

(R.R.III 77).

Appellant admitted that he made up his nickname for Clandre (R.R.III 82). Thus,

it was a reasonable inference from the evidence that appellant make up a nickname

for Keanthony as well. The State is permitted wide latitude in drawing inferences from

the evidence as long as the inference is fair, legitimate, and offered in good faith. See

Drew v. State, 743 S.W.2d 207, 218 (Tex. Crim. App. 1987); Mowbray v. State, 788

S.W.2d 658, 659, 671 (Tex. App.—Corpus Christi 1990, pet. ref’d). Since appellant

admitted to making up is own nickname for Clandre, it was a reasonable inference

from the evidence that he also made a nickname for Keanthony considering appellant

admitted to barely knowing Keanthony (R.R.III 75).

8

Appellant’s brief at 23.

29

Harm

If this Court determines that the trial court erred in failing to immediately give

a limiting instruction, reversal is only required a substantial right has been affected. See

TEX. R. APP. PROC. 44.2(a). A substantial right is affected when the error had a

substantial and injurious effect or influence ion the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997). Substantial rights are not affected by the

erroneous admission of evidence if, after examining the record as a whole, we have a

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

Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

If this Court finds that the Prosecutor’s argument was erroneous, it was not

reversal error given the overwhelming evidence of guilt and many inconsistencies in

appellant’s testimony. Appellant’s point of error should be overruled.



30

CONCLUSION

It is respectfully submitted that all things are regular and that the conviction

should be affirmed.

DEVON ANDERSON

District Attorney

Harris County, Texas

/s/ Abbie Miles

ABBIE MILES

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 24072240

Miles_abbie@dao.hctx.net

Curry_Alan@daohctx.net

CERTIFICATE OF COMPLIANCE

The undersigned attorney certifies that this computer-generated document has

a word count of 8,030 words, based upon the representation provided by the word

processing program that was used to create the document.

/s/ Abbie Miles

Abbie Miles

Assistant District Attorney

31

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing instrument has been mailed to the

appellant’s attorney at the following address on April 20, 2015:

Wayne T. Hill

4615 Southwest Freeway, Ste. 600

Houston, Texas 77027

/s/ Abbie Miles

ABBIE MILES

Assistant District Attorney

Harris County, Texas

1201 Franklin, Suite 600

Houston, Texas 77002

(713) 755-5826

TBC No. 024072240

Miles_abbie@dao.hctx.net

Curry_Alan@dao.hctx.net

Date: April 20, 2015

32