Opinion filed May 12, 2016




                                      In The


        Eleventh Court of Appeals
                                    __________

                             No. 11-14-00145-CR
                                    __________

                KENDALL JEROME WOODS, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                    On Appeal from the 266th District Court
                             Erath County, Texas
                       Trial Court Cause No. CR13995


                     MEMORANDUM OPINION
      Kendall Jerome Woods appeals his jury conviction for engaging in organized
criminal activity. See TEX. PENAL CODE ANN. § 71.02(a)(1) (West Supp. 2015). The
jury assessed his punishment at confinement for a term of thirty-five years in the
Institutional Division of the Texas Department of Criminal Justice and a fine of
$10,000. In three issues on appeal, Appellant asserts that (1) the trial court erred
when it admitted statements made by an accomplice to the police, (2) the trial court
erred when it allowed a police officer to testify as an expert on deadly weapons, and
(3) the evidence is insufficient to support the jury’s finding that Appellant used or
exhibited a deadly weapon during the commission of the offense. We affirm.
                                 Background Facts
      Beginning on March 17, 2013, three individuals committed a string of four
robberies in Erath County. There were three suspects to the robberies: Appellant,
Davion Thompson, and Brittany Pinson. Multiple officers interviewed Thompson
and Pinson. Officers also interviewed Appellant, who confessed to his involvement
in the four robberies and stated that Thompson and Pinson also participated in the
robberies. Appellant also acknowledged that he and Thompson used pellet guns
during the robberies. He disclosed the location of one of the pellet guns to the
officers. The first pellet gun was recovered at Appellant’s grandfather’s house.
Appellant told the officers to ask Pinson for the location of the second pellet gun.
      Texas Ranger Danny Briley and Stephenville Police Lieutenant Don Miller
interviewed Pinson.     Investigator Orlando Gaitan of the Stephenville Police
Department testified that Pinson disclosed to Ranger Briley and Lieutenant Miller
that the second pellet gun had been discarded in a roadside ditch. Sergeant Paula
Claunch of the Stephenville Police Department testified that she was assigned the
task of driving Pinson out to locate the second pellet gun. The second pellet gun
was recovered with Pinson’s assistance.       Both pellet guns were entered into
evidence.
                                      Analysis
      We first address Appellant’s sufficiency challenge set out in his third issue.
Appellant challenges the sufficiency of the evidence supporting the jury’s
affirmative finding to a special issue inquiring if he “used or exhibited a deadly
weapon, to-wit: a pellet gun, during the commission of said offense.” A deadly
weapon finding can be made if a deadly weapon “was used or exhibited during the
commission of a felony offense or during immediate flight therefrom.” TEX. CODE
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CRIM. PROC. ANN. art. 42.12, § 3g(a)(2) (West Supp. 2015). The deadly weapon
finding is important because it affects a defendant’s eligibility for parole. See
Coleman v. State, 145 S.W.3d 649, 652 (Tex. Crim. App. 2004). If a deadly weapon
finding is erroneous, the proper remedy is deletion of the finding from the judgment.
See Plummer v. State, 410 S.W.3d 855, 856 (Tex. Crim. App. 2013); Williams v.
State, 970 S.W.2d 566 (Tex. Crim. App. 1998).
      We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the
evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When the standard is applied to the special issue regarding
the use or exhibition of a deadly weapon during the commission of a felony offense,
the question facing this court is whether a rational trier of fact could have found
beyond a reasonable doubt that Appellant used or exhibited a deadly weapon to
facilitate engaging in organized criminal activity. See Coleman, 145 S.W.3d at 652;
Gale v. State, 998 S.W.2d 221, 224 (Tex. Crim. App. 1999). When conducting a
sufficiency review, we consider all of the evidence admitted at trial, including
evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007).
      Appellant contends that the evidence is insufficient because the evidence of
“the manner and use of the pellet gun” does not show it was used as a deadly weapon.
He contends that the evidence was insufficient because there was no evidence that
he verbally threatened a victim, pointed a pellet gun at a victim’s face, or used a
                                          3
pellet gun as a blunt object. Appellant cites Delgado v. State, 986 S.W.2d 306, 308
(Tex. App.—Austin 1999, no pet.), to support his analysis. We conclude that the
analysis in Delgado is not controlling.
       The Penal Code defines a deadly weapon as “a firearm or anything manifestly
designed, made, or adapted for the purpose of inflicting death or serious bodily
injury” or “anything that in the manner of its use or intended use is capable of
causing death or serious bodily injury.” TEX. PENAL CODE ANN. § 1.07(a)(17) (West
Supp. 2015). At the time that Delgado was decided, Texas courts appeared to require
evidence that a pellet or BB gun was loaded at the time of its use. 986 S.W.2d at
307–08 (citing Holder v. State, 837 S.W.2d 802, 807–09 (Tex. App.—Austin 1992,
pet. ref’d)). The Austin court recognized in Delgado that proving a pellet gun was
loaded during a robbery could be difficult. Id. at 308. The court held that a rational
jury could infer that a pellet gun was loaded when the actor pointed the pellet gun at
the heads of the robbery victims and threatened to kill them. Id. at 308. The Austin
court also held that verbal threats that the defendant intended to strike a robbery
victim, together with evidence that the pellet gun’s size and weight made it capable
of causing serious bodily injury if used as a club, could support a rational jury finding
that the defendant intended to use the pellet gun as a deadly club or bludgeon. Id. at
309.
       In Adame v. State, the Court of Criminal Appeals agreed with Delgado that a
jury may rationally infer that a pellet gun is loaded when a defendant points the pellet
gun at someone and threatens serious bodily injury. Adame v. State, 69 S.W.3d 581,
582 (Tex. Crim. App. 2002). However, the court held in Adame that “[i]t is not
necessary, however, to place an additional evidentiary burden on the State to
affirmatively prove that a BB gun, which is not a deadly weapon per se, was loaded
at the time of the commission of the offense.” Id. “[I]n proving use of a deadly
weapon other than a deadly weapon per se, the State need show only that the weapon
                                           4
used was capable of causing serious bodily injury or death in its use or intended use.”
Id. The court held that evidence of whether or not a BB gun used in a convenience
store robbery was loaded was not significant to a deadly weapon analysis. Id. Thus,
the relevant inquiry is the gun’s capability rather than its actual performance.
Accordingly, whether Appellant verbally threatened or pointed a pellet gun at a
victim’s face is not necessary to our analysis of whether the pellet gun was a deadly
weapon in the manner of its use or intended use. See id.
      Sergeant Sha King of the Stephenville Police Department testified that, based
on the barrel velocity of the pellet guns used in the robberies and how far the pellets
could penetrate ballistics gelatin, he had determined that the guns could cause
serious bodily injury or death if they were discharged at close range at someone’s
face or eye area or the back of someone’s head. “With testimony that a BB gun is
capable of causing serious bodily injury, it is reasonable for a jury to make a deadly
weapon finding.” Adame, 69 S.W.3d at 582. Based on Sergeant King’s testimony,
a rational factfinder could conclude beyond a reasonable doubt that the pellet guns
were capable of causing serious bodily injury or death.
      In Patterson v. State, the Texas Court of Criminal Appeals held that, to
“exhibit” a deadly weapon, a defendant need only to have consciously displayed it
during the commission of the felony offense. Patterson v. State, 769 S.W.2d 938,
941 (Tex. Crim. App. 1989). In Plummer v. State, the court further explained that,
for violent offenses, the verb “exhibits” implicitly contains an element of
“facilitation”; thus, one can “exhibit,” or consciously display, a deadly weapon
without overtly using it to harm or threaten another if its intimidation value assists
in the commission of the felony. Plummer, 410 S.W.3d at 862. In this instance, the
deadly weapon facilitates the associated felony because it provides “intimidation
value that assists the commission of the felony.” Id.


                                           5
         In McCain v. State, the Texas Court of Criminal Appeals held that a butcher
knife had been used or exhibited during a robbery and explained:
         Had the knife been completely concealed by appellant’s clothing,
         additional facts would have been needed to establish that the butcher
         knife was used. But the knife was partially exposed, and from that
         exposure, the factfinder could rationally conclude that the knife was
         exhibited during the criminal transaction, or at least, that its presence
         was used by appellant to instill in the complainant apprehension,
         reducing the likelihood of resistance during the encounter.

McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000).                   Appellant
acknowledges in his brief that “[b]oth men were banging the counter with the pellet
guns and asking for the money.” We conclude that a rational trier of fact could have
found beyond a reasonable doubt that Appellant used or exhibited a deadly weapon
to facilitate engaging in organized criminal activity. We overrule Appellant’s third
issue.
         Appellant asserts in his first issue that the trial court erred in allowing the
hearsay statements of an accomplice into evidence under Rule 803(24) of the Texas
Rules of Evidence and by violating the Confrontation Clause of the Sixth
Amendment. The prosecutor asked Investigator Gaitan if an interview with either
Pinson or Thompson led to the recovery of one of the pellet guns used in the
robberies. Appellant objected to the question on the ground that its response called
for hearsay. Outside the presence of the jury, the trial court considered Rule 803(24)
and determined that Pinson’s statements to officers regarding the location of one of
the pellet guns were admissible as statements against interest. See TEX. R. EVID.
803(24). During the course of the hearing, Investigator Gaitan stated that Pinson
made the statements to other officers rather than directly to him. Appellant made an
additional hearsay objection to the effect that the statements constituted double



                                            6
hearsay because Investigator Gaitan was testifying as to what he learned from
officers who interviewed Pinson. The trial court overruled this objection.
        We note at the outset that the record does not reflect that Appellant made an
objection under the Confrontation Clause1 to Investigator Gaitan’s testimony.
Appellant contends that he made a Confrontation Clause objection during an
unrecorded bench conference that preceded the hearing on Rule 803(24). He
supports this contention by referencing a subsequent argument he offered during the
punishment phase of trial wherein defense counsel lodged a Confrontation Clause
objection and stated, “I know we had an argument about it,” apparently referencing
the earlier arguments concerning Investigator Gaitan’s testimony. We disagree that
this subsequent reference indicates that Appellant made an earlier objection under
the Confrontation Clause. The parties and the trial court extensively discussed the
admissibility of the testimony under Rule 803(24), but there is no reference to the
Confrontation Clause.
        The Rules of Appellate Procedure provide that, “[a]s a prerequisite to
presenting a complaint for appellate review, the record must show that . . . the
complaint was made to the trial court by a timely request, objection, or motion.”
TEX. R. APP. P. 33.1(a)(1) (emphasis added).                        An objection made during an
unrecorded bench conference does not preserve error. Hullaby v. State, 911 S.W.2d
921, 926 (Tex. App.—Fort Worth 1995, pet. ref’d); Wallace v. State, 822 S.W.2d
290, 293 (Tex. App.—Houston [1st Dist.] 1991, pet. ref’d). Accordingly, Appellant
has not preserved an objection under the Confrontation Clause for appellate review.
        Alternatively, Appellant asks us to essentially overrule the holding by the
Court of Criminal Appeals in Holland v. State that a hearsay objection alone does

        1
         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. App.—Eastland 2011, pet. ref’d).

                                                      7
not preserve error on the basis of the Confrontation Clause. See Holland v. State,
802 S.W.2d 696, 700 (Tex. Crim. App. 1991). As an intermediate appellate court,
we must follow the binding precedent of the Court of Criminal Appeals. Gonzales v.
State, 190 S.W.3d 125, 130 n.1 (Tex. App.—Houston [1st Dist.] 2005, pet ref’d)
(citing Southwick v. State, 701 S.W.2d 927, 929 (Tex. App.—Houston [1st Dist.]
1985, no pet.)). Therefore, we must decline Appellant’s request.
      We review a trial court’s ruling on admissibility of 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). As
Investigator Gaitan’s testimony potentially involves two layers of hearsay, we will
first address Pinson’s statements to the interviewing officers, and then we will
address the officers’ statements to Investigator Gaitan, relaying what they had
learned from Pinson.
      Hearsay is a statement that the declarant does not make while testifying at trial
that is offered to prove the truth of the matter asserted in the statement. TEX. R.
EVID. 801(d); see Tienda v. State, 479 S.W.3d 863, 874 (Tex. App.—Eastland 2015,
no pet.). Hearsay is inadmissible except as provided by statute or the Rules of
Evidence. TEX. R. EVID. 802; see Tienda, 479 S.W.3d at 874.
      An exception to the hearsay rule allows the admission of statements made
against the declarant’s interest. TEX. R. EVID. 803(24). This exception permits the
admission of a statement that:
            (A) a reasonable person in the declarant’s position would have
      made only if the person believed it to be true because, when made, it
      was so contrary to the declarant’s proprietary or pecuniary interest or
      had so great a tendency to invalidate the declarant's claim against
      someone else or to expose the declarant to civil or criminal liability or
      to make the declarant an object of hatred, ridicule, or disgrace; and


                                          8
             (B) is supported by corroborating circumstances that clearly
      indicate its trustworthiness, if it is offered in a criminal case as one that
      tends to expose the declarant to criminal liability.
Id. The rationale behind admitting these types of statements “stems from the
commonsense notion that people ordinarily do not say things that are damaging to
themselves unless they believe they are true.” Walter v. State, 267 S.W.3d 883, 890
(Tex. Crim. App. 2008) (citing Williamson v. United States, 512 U.S. 594, 599
(1994)). “[A] reasonable person would not normally claim that he committed a
crime, unless it were true.” Id. (citing United States v. Watson, 525 F.3d 583, 586
(7th Cir. 2008)). Rule 803(24) sets out a two-step foundation requirement for the
admissibility of hearsay statements against a person’s penal interest. Id. (citing
Dewberry v. State, 4 S.W.3d 735, 751 (Tex. Crim. App. 1999)). The trial court must
first determine whether the statements, considering all of the circumstances, subject
the declarant to criminal liability and whether the declarant realized this when he
made the statements. Id. at 890–91. The trial court must then determine whether
sufficient corroborating circumstances exist that clearly indicate the trustworthiness
of the statements. Id. at 891 (citing Dewberry, 4 S.W.3d at 751).
      Statements against penal interest can inculpate both the declarant and a third
party, such as a codefendant. Dewberry, 4 S.W.3d at 751. “An admission against a
co-defendant declarant’s interest can be admissible against the defendant so long as
it is sufficiently against the declarant’s interest to be reliable.”          Id. (citing
Williamson, 512 U.S. at 603).             Pinson’s statements to Ranger Briley,
Lieutenant Miller, and Sergeant Claunch, as to the location of the gun, subjected
Pinson to criminal liability because the statements verified Pinson’s participation in
the robbery and led to the recovery of evidence that could be used against her.
Pinson made the statements to three officers and undoubtedly knew, as would the



                                           9
“average reasonable person,” that speaking to them about her involvement in a string
of robberies would expose her to criminal liability. Walter, 267 S.W.3d at 898.
      Furthermore, there must be sufficient corroborating circumstances that clearly
indicate the trustworthiness of the statements. Dewberry, 4 S.W.3d at 751. A trial
court should consider the following factors: (1) whether guilt of declarant is
inconsistent with guilt of the defendant, (2) whether declarant was so situated that
he might have committed the crime, (3) the timing of the declaration, (4) the
spontaneity of the declaration, (5) the relationship between the declarant and the
party to whom the statement is made, and (6) the existence of independent
corroborative facts. Id. (citing Davis v. State, 872 S.W.2d 743, 749 (Tex. Crim. App.
1994)).
      The evidence at trial showed that Pinson’s statements bore the necessary
indicia of trustworthiness. First, Pinson’s guilt was not inconsistent with Appellant’s
guilt. Her statements about the location of the gun implicated her as a party in the
same string of robberies that Appellant was charged with committing. Second, a
Crime Stoppers’ tip indicated that Pinson’s black Mustang had been used in the
robberies.   Third, Pinson made the statements when she was detained for
investigation only a few days after the first robbery. This weighs in favor of
trustworthiness. The fourth factor of “spontaneity” weighs neither in favor of nor
against trustworthiness. There is no evidence that Pinson was under the stress or
dominating influence of a startling event but, rather, had requested an attorney and
was no longer the subject of questioning when she decided to initiate a conversation
with two other officers. The fifth factor weighs in favor of trustworthiness because
the relationship between the declarant and the person to whom the statement was
given was that of a suspect in custody admitting guilt to an investigating officer. See
James v. State, 102 S.W.3d 162, 177 (Tex. App.—Fort Worth 2003, pet. ref’d).


                                          10
        Additionally, the State developed independent corroborative facts when it
recovered the pellet gun that was the subject of Pinson’s statement. The police
recovered articles of clothing from Pinson’s car that were worn during the robberies.
Further, Appellant acknowledged that he participated in the string of robberies with
Pinson and that she knew the location of the second gun. We conclude that the
independent corroborative facts, plus evidence demonstrating the other
Dewberry/Davis factors, indicate that Pinson’s statements were trustworthy under
Rule 803(24). Therefore, the trial court did not abuse its discretion in overruling
Appellant’s hearsay objection because Pinson’s statements were admissible under
Rule 803(24).
        We must now address the admissibility of Investigator Gaitan’s testimony
from the perspective that Pinson did not make the statements directly to him but,
rather, to other officers. Even if we assume that the statements constituted double
hearsay,2 the admission of Pinson’s statements through Investigator Gaitan did not
constitute reversible error. The improper admission of hearsay evidence “does not
constitute reversible error if the same facts are proved by other, properly admitted
evidence.” Maranda v. State, 253 S.W.3d 762, 769 (Tex. App.—Amarillo 2007,
pet. dism’d) (citing Anderson v. State, 717 S.W.2d 622, 628 (Tex. Crim. App.
1986)).
        Appellant objected to Investigator Gaitan testifying that Pinson told other
officers where the second pellet gun could be found. Sergeant Claunch testified that
Pinson rode with her to locate the second pellet gun, which had been discarded and
which was found in the area where Pinson directed the officers to look for it. Thus,



        2
         In addressing a hearsay issue in Tienda, we noted that a police officer should be allowed to testify
generally as to the reasons for his behavior, his presence, and his conduct so that his involvement does not
appear to have been simply by happenstance. 479 S.W.3d at 879 (citing Schaffer v. State, 777 S.W.2d 111,
114–15 (Tex. Crim. App. 1989)).

                                                     11
the same fact that Investigator Gaitan testified to was established by other, properly
admitted evidence. We overrule Appellant’s first issue.
      In his second issue, Appellant asserts that the trial court erred when it allowed
Sergeant King to testify as an expert on deadly weapons concerning the pellet guns
that were recovered. We review a trial court’s determination that a witness is
qualified as an expert and its ruling on the admission of expert testimony for an abuse
of discretion. Ellison v. State, 201 S.W.3d 714, 723 (Tex. Crim. App. 2006).
“Absent a clear abuse of that discretion,” we will not disturb the trial court’s decision
to admit or exclude testimony. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App.
2000). We review the trial court’s ruling in light of the evidence before the court at
the time of the ruling. Rodgers v. State, 205 S.W.3d 525, 528–29 (Tex. Crim. App.
2006).
      If scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified as
an expert by knowledge, skill, experience, training, or education may testify thereto
in the form of an opinion or otherwise. TEX. R. EVID. 702. “The special knowledge
which qualifies a witness to give an expert opinion may be derived from specialized
education, practical experience, a study of technical works, or a varying combination
of these things.” Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim. App. 1995).
“Because the possible spectrum of education, skill, and training is so wide, a trial
court has great discretion in determining whether a witness possesses sufficient
qualifications to assist the jury as an expert on a specific topic in a particular case.”
Rodgers, 205 S.W.3d at 527–28. To evaluate whether a trial court abused its
discretion when it determined that a witness was qualified as an expert, we consider
three criteria: (1) Is the field of expertise complex? (2) How conclusive is the
expert’s opinion? (3) How central is the area of expertise to the resolution of the
lawsuit? Id. at 528.
                                           12
      Appellant contends that Sergeant King did not have the requisite knowledge
of the specific pellet guns used, did not have the requisite knowledge and
understanding of the underlying scientific data, and had not testified as an expert on
the subject of pellet guns in prior trials and that he, therefore, did not qualify as an
expert on pellet guns. We disagree. Expert or lay testimony may be sufficient to
support a deadly weapon finding, and police officers can be expert witnesses with
respect to whether a deadly weapon was used. Tucker v. State, 274 S.W.3d 688, 692
(Tex. Crim. App. 2008) (citing Hawkins v. State, 605 S.W.2d 586, 588 (Tex. Crim.
App. 1980)). The Court of Criminal Appeals determined in Tucker that “the lengthy
experience of both officers, and [a testifying officer’s] position in a homicide
division in particular, suggests qualification as an expert on whether certain wounds
were caused by a deadly weapon.” Id.
      Sergeant King testified that he had worked as a police officer for over nineteen
years. He testified that he had served as a defensive tactic training officer. In regard
to firearm training, he testified that he was required to qualify with a firearm four
times a year, had completed forty hours of training in the police academy, and had
completed additional training throughout his career. He testified that he worked for
a period of time in the Criminal Investigation Division and investigated crimes that
involved the use of deadly weapons. He also testified that he had used pellet guns
extensively in the past.
      The analysis performed by Sergeant King was relatively simple. Thus, the
required degree of education, training, and experience was not extremely high. See
Rodgers, 205 S.W.3d at 527–28.          The trial court could have concluded that
Sergeant King’s qualifications, including his training and law enforcement experi-
ence as well as his personal experience using pellet guns, were sufficient such that
his testimony would “help the trier of fact to understand the evidence.” TEX. R.
EVID. 702. Accordingly, the trial court did not abuse its discretion when it permitted
                                          13
Sergeant King to testify that the pellet guns were deadly weapons. We overrule
Appellant’s second issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


May 12, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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