









In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana


______________________________

No. 06-09-00019-CR
______________________________


JOSE ANGEL CARRILLO, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 124th Judicial District Court
 Gregg County, Texas
Trial Court No. 36,225-B





Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Chief Justice Morriss

MEMORANDUM  OPINION

	Jose Angel Carrillo had earlier been convicted of driving while intoxicated with a child under
fifteen years of age, a state-jail felony, and his punishment had been assessed at two years'
confinement, probated for five years.  A short time later, based on Carrillo's plea of true to
allegations that he had subsequently violated the terms of his community supervision, the trial court
revoked his community supervision and sentenced him to two years' confinement in a state-jail
facility.
	Carrillo argues on appeal that the trial court abused its discretion in sentencing him because
it refused to consider the entire range of punishment and, instead, imposed a predetermined sentence.
	Such a complaint is not preserved for review unless a timely objection is raised.  Teixeira v.
State, 89 S.W.3d 190, 192 (Tex. App.--Texarkana 2002, pet. ref'd);  Washington v. State, 71 S.W.3d
498, 499 (Tex. App.--Tyler 2002, no pet.); Cole v. State, 757 S.W.2d 864, 866 (Tex.
App.--Texarkana 1988, pet. ref'd).  No objection was made on this basis during the proceeding
below; thus, the complaint was not preserved for our review.
	Even if it had been preserved, there was no error here.  A trial court denies due process where
it arbitrarily refuses to consider the entire range of punishment for an offense, or refuses to consider
mitigating evidence, and imposes a predetermined punishment.  Ex parte Brown, 158 S.W.3d 449,
454 (Tex. Crim. App. 2005); McClenan v. State, 661 S.W.2d 108, 110 (Tex. Crim. App. 1983),
overruled on other grounds by DeLeon v. Aguilar, 127 S.W.3d 1 (Tex. Crim. App. 2004).  If a trial
court, when community supervision is granted, announces a predetermined sentence it will impose
in the event of a future violation of the terms of community supervision, and then, at revocation,
imposes the sentence thus previously threatened, this denies due process.  Sanchez v. State, 989
S.W.2d 409, 411 (Tex. App.--San Antonio 1999, no pet.).  Here, the trial court had not, at the earlier
trial, threatened Carrillo with a particular sentence in the event of revocation. (1)  Instead, the court, at
the time of revocation, recalled a comment made, at trial, by one of the attorneys that "this judge
sitting on this bench is going to enforce whatever sentence you impose."  The court indicated at that
time that it was going to honor the two-year sentence assessed by the earlier jury.  That comment by
the trial court is not the prejudgment forbidden by law.
	Counsel seeks to circumvent the lack of preservation of error by asserting that this error was
structural.  "Structural error" affects the "conduct of the trial from beginning to end" and is not
subject to a harm analysis.  Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991); see Cain v. State,
947 S.W.2d 262, 264 (Tex. Crim. App. 1997).  Structural error has been found, for example, in the
deprivation of the right to an impartial judge, Fulminante, 499 U.S. at 309-10; the total deprivation
of the right to counsel at trial, Gideon v. Wainwright, 372 U.S. 335 (1963); unlawful exclusion of
members of the defendant's race from a grand jury, Vasquez v. Hillery, 474 U.S. 254 (1986); the right
to self-representation at trial, McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984); the right to public
trial, Waller v. Georgia, 467 U.S. 39, 49 n.9 (1984); and total deprivation of expert assistance to
which the defendant was entitled, Rey v. State, 897 S.W.2d 333, 345 (Tex. Crim. App. 1995).
	Each of these constitutional deprivations is a similar structural defect affecting the
framework within which the trial proceeds, rather than simply an error in the trial
process itself.  "Without these basic protections, a criminal trial cannot reliably serve
its function as a vehicle for determination of guilt or innocence, and no criminal
punishment may be regarded as fundamentally fair."  Rose v. Clark, 478 U.S. at
577-78 (citation omitted).

Fulminante, 499 U.S. at 310.
	While Carrillo categorizes the trial court's utterances, at the time it assessed his punishment,
as showing that the trial court lacked impartiality, we disagree.  Assessing punishment, even if it is
done erroneously, would not ordinarily, alone, demonstrate that the trial court lacked impartiality. 
The comments made by the trial court, at the time it imposed a sentence, provided no such
demonstration here.  We can find no structural error.
	We affirm the judgment.


						Josh R. Morriss, III
						Chief Justice

Date Submitted:	August 19, 2009
Date Decided:		August 20, 2009

Do Not Publish
1. The trial court had commented to the jury that, in the event of a revocation, "I would think
it would be a safe investment that it's going to be addressed, and your will carried out for any
violation."  The court continued, "That probably won't be during my tenure as judge.  . . . [T]his is
the last year of my service."  In context, the court was not promising any particular sentence for
Carrillo in the event of a revocation.


ex. Crim. App. 2007) (quoting
Johnson, 23 S.W.3d at 11).  Under this standard, we must afford "due deference" to the fact-finder's
determinations.  Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006); see Young v. State,
242 S.W.3d 192, 198 (Tex. App.--Tyler 2007, no pet.).  And although when we review the factual
sufficiency of the evidence, we have the ability to second-guess the fact-finder to a limited degree,
we should nonetheless be deferential, with a high level of skepticism about the fact-finder's verdict
required before a reversal can occur.  Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007);
Young, 242 S.W.3d at 198-99.  We use a hypothetically correct jury charge to evaluate both the legal
and factual sufficiency of evidence.  Grotti v. State, 273 S.W.3d 273 (Tex. Crim. App. 2008).
	The standard of factual review to be applied on appeal is the same regardless of whether the
State uses direct or circumstantial evidence.  King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App.
1995); McGoldrick v. State, 682 S.W.2d 573, 577 (Tex. Crim. App. 1985). 
 B.	Circumstantial Evidence
	In reviewing the sufficiency of the evidence, we should look at "events occurring before,
during and after the commission of the offense, and may rely on actions of the defendant which show
an understanding and common design to do the prohibited act."  Cordova v. State, 698 S.W.2d 107,
111 (Tex. Crim. App. 1985).  Each fact need not point directly and independently to the guilt of the
appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to
support the conviction.  Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); see Johnson v.
State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) ("[I]t is not necessary that every fact point
directly and independently to the defendant's guilt; it is enough if the conclusion is warranted by the
combined and cumulative force of all the incriminating circumstances."); Barnes v. State, 876
S.W.2d 316, 321 (Tex. Crim. App. 1994); Alexander v. State, 740 S.W.2d 749, 758 (Tex. Crim. App.
1987); Earls v. State, 707 S.W.2d 82, 85 (Tex. Crim. App. 1986) (a person's identity can be proved
by circumstantial evidence).  "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; see also Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App.
2004). 
 C.	Legal Requirements of Capital Murder Including the Law of Parties
	A person commits capital murder if he or she intentionally or knowingly causes the death of
an individual while in the course of committing or attempting to commit robbery.  Tex. Penal Code
Ann. § 19.02(b)(1) (Vernon 2003), § 19.03(a)(2) (Vernon Supp. 2009); Johnson v. State, 853
S.W.2d 527, 535 (Tex. Crim. App. 1992); Frank v. State, 183 S.W.3d 63, 72 (Tex. App.--Fort
Worth 2005, pet. ref'd).  The law of parties applies to the offense of capital murder.  Johnson, 853
S.W.2d at 534; Frank, 183 S.W.3d at 72.
	Under the law of parties, "[a] person is criminally responsible as a party to an offense if the
offense is committed by his own conduct, by the conduct of another for which he is criminally
responsible, or by both."  Tex. Penal Code Ann. § 7.01(a) (Vernon 2003); Frank, 183 S.W.3d at
72.  A person is "criminally responsible" for an offense committed by the conduct of another, if
acting with intent to promote or assist the commission of the offense, he or she solicits, encourages,
directs, aids, or attempts to aid the other person to commit the offense.  Tex. Penal Code Ann.
§ 7.02(a)(2) (Vernon 2003); Frank, 183 S.W.3d at 72.  Evidence is sufficient to convict under the
law of parties when the defendant is physically present at the commission of the offense and
encourages its commission by words or other agreement.  Ransom v. State, 920 S.W.2d 288, 302
(Tex. Crim. App. 1994) (op. on reh'g); Frank, 183 S.W.3d at 72-73.  In determining whether a
defendant participated in an offense as a party, the fact-finder may examine the events occurring
before, during, and after the commission of the offense and may rely on actions of the defendant that
show an understanding and common design to commit the offense.  Ransom, 920 S.W.2d at 302;
Cordova, 698 S.W.2d at 111; Frank, 183 S.W.3d at 73.
	Further, Section 7.02(b) of the Texas Penal Code provides that
	[i]f, in the attempt to carry out a conspiracy to commit one felony, another felony is
committed by one of the conspirators, all conspirators are guilty of the felony actually
committed, though having no intent to commit it, if the offense was committed in
furtherance of the unlawful purpose and was one that should have been anticipated
as a result of the carrying out of the conspiracy.

Tex. Penal Code Ann. § 7.02(b) (Vernon 2003); Frank, 183 S.W.3d at 73.
 D.	Primary Points of Contention 
	The primary points of contention are Spagano's identification of Hartsfield, the box with
Hartsfield's blood on it, Hartsfield's connection to a white van on the premises, and the totality of
the physical evidence linking Hartsfield to the crime.
 1.	Spagano's identification of Hartsfield
	While Spagano and her boyfriend waited in line at the KFC (he was in front of her in line),
she was a mere foot or two away from the two young African-American men immediately behind
her.  She testified that she "actually turned around and looked at him" and that she "was sure" that
the photograph she picked out (Hartsfield) was the man standing immediately behind her in line. 
Ranger Glenn Elliott's notes describe her identification as "[s]he is sure."  At trial, she testified that
she could not positively say that the man in the photograph was the man she saw in the KFC.  Due
to the events occurring more than twenty years prior, she would not even attempt to identify
Hartsfield as the man behind her in line at the KFC. 
	Hartsfield made four arguments that Spagano's identification of Hartsfield is not reliable: 
1) Hartsfield was not in the restaurant when the telephone call occurred; 2) Hartsfield was not in the
restaurant at all that night because Spagano's order appears last on the register tape; 3) as of twenty
minutes before closing, Lanetta Ashley, a KFC employee working that night, did not remember any
black men being in the restaurant; and 4) Spagano testified that the man immediately behind her was
taller than his companion, and that is fatally contradicted by the fact that Hartsfield is shorter than
his co-defendant, Romeo Pinkerton.
	Hartsfield first argues that he could not have heard the telephone conversation about the
amount of money in the registers because Spagano said the black men did not come into the KFC
until she was awaiting her order and that the telephone call was made before she ordered.
Specifically, he argues that Spagano testified that the call occurred while she was in line but that the
men did not come in until she was waiting for her order.  However, Spagano actually testified that
at the time she overheard the telephone call, the two young black men had already arrived and were
standing right behind her and that based on their proximity to her, she believed they also overheard
the telephone conversation. 
	Hartsfield then argues that Spagano's order appears on the register tape as the last order of
the night; therefore, her testimony that Hartsfield ordered food after her cannot possibly be true. 
Spagano testified that her boyfriend ordered, she ordered, then Hartsfield.  She and her boyfriend ate
their food inside the KFC and then left at about closing time.  The register tape shows the last two
orders of the night at 9:47, a nine-piece full dinner, and at 9:57, a "two-piece snack, all white." 
Spagano ordered two pieces of chicken, potatoes, and coleslaw.  The State argued that her order is
not the same thing as a "two-piece snack, all white."  While this was an issue for the jury's
determination, the contrary argument is that for Spagano to have been the last person to order that
night, her boyfriend had to have ordered a nine-piece full dinner for himself.  The jury could have
reasonably concluded that one person did not order a nine-piece full dinner and that Spagano's order
was not the last order for the night. 
	Hartsfield also contends that he was not in the KFC on the night of the murders and that
Ashley, (3) a teenage girl working at the KFC on the night of the murders, testified that she did not
remember seeing any young black men in the KFC that night, "but I'm not going to say there
wasn't."  On redirect, Ashley agreed that black men being in the KFC was no "big deal."  At most,
this testimony created a factual issue for the jury to resolve. 
	Hartsfield also asserted that Spagano's testimony cannot be believed because Spagano
identified Hartsfield as being taller than his companion, but Hartsfield's co-defendant, Pinkerton, (4)
is taller than Hartsfield.  However, the record reflects that blood at the scene matched Hartsfield's
(the box) and Pinkerton's (a napkin), but that semen found on one of the victim's pants did not
match either of the defendant's. (5)  Therefore, the jury could have believed that a third unidentified
perpetrator, as opposed to Pinkerton, was in line with Hartsfield at the KFC or that Spagano was
simply mistaken about the relative heights of the men. 
 2.	The bloody box
	During the robbery of the KFC, the perpetrators rummaged through the shelves beneath the
main cash register, leaving them messy and disorganized.  A box that once held rolls of register tape
was found in the KFC with Hartsfield's blood on it. (6)  Similarly, one of the shelves beneath the
register had a dark stain on it. (7)  Neither Ashley nor Leann Killingsworth (8) remember the stain being
there before the events of that night. (9)  KFC employees testified that the box was the type used by the
KFC, usually containing rolls of register tape, and that such a box would have been located on a shelf
beneath the cash register. 
	During the years of investigation, Hartsfield gave a sworn written statement and grand jury
testimony that he had never been to the KFC.  He also denied that the blood on the box was his. 
However, after DNA testing proved it was his blood and other evidence showed that the box was the
type used at the KFC, he was convicted of aggravated perjury.  Hartsfield, 200 S.W.3d at 817.  At
trial, counsel for Hartsfield argued the State could not prove the box originated at the KFC. 
	Hartsfield argues that the bloody box is the only physical evidence linking him to the crime
and that the State did not provide a plausible explanation for how his blood got on the box, other
than a vague mention of a cut on his arm at some time in 1983.  He also attacks the chain of custody
of the box (10) because the evidence logs are missing, and none of the crime scene photographs show
the box on the shelf or anywhere else in the KFC.  Hartsfield questions the validity of the testimony
regarding the box by attacking the somewhat conflicting testimony and actions of Ranger Elliott and
Investigator Danny Pirtle:  Elliott said he saw the blood on the box, but did not direct Pirtle to
photograph it, there is no documentation of the box being found with blood on it, the box does not
appear in any of the photographs, there is no documentation of the box being collected from the
scene, and, of the ten rolls of film Pirtle took at the crime scene, only one was able to be developed. 
However, Elliott testified that on his walk-through of the KFC, he saw a box with blood spatter on
it on a shelf beneath the register.  At trial, he recognized the blood spatter on State's Exhibit 41 (the
box) and identified it as the box he saw in the KFC. 
		3.	The white van
	Prior to the murders, as she was walking into the KFC with her boyfriend, Spagano saw a
white van parked at the rear of the KFC, near the dumpster.  She found it odd because there were no
parking spaces there.  She testified that after Hartsfield ordered and received his food, he and his
companion both left the KFC (11) and walked toward the back of the KFC and that Spagano did not
notice a vehicle leave the parking lot.  Around closing time, when she and her boyfriend finished
eating and left the KFC, she noticed that the white van was still parked in the same place. 
	Shortly after the KFC's closing time, Bobby Robinson was driving by the KFC and saw that
only the lights in the back of the restaurant were on, that the back door of the KFC was open, and
that a light-colored van was parked at the KFC's back door.  He did not see anyone in the KFC or
the van.  Similarly, around 10:30, Linda Hardee was driving by the KFC and saw a light-colored
utility-type van parked near the back of the KFC, in the drive-through lane, facing the wrong way. 
She admitted that she did not see Hartsfield.
	James Rowe, testifying for the defense, stated that near 10:00 that night, he saw a white Ford
Econoline van, driven by a white man, leaving the KFC.  Rowe said he almost collided with the van
when it pulled out from the back of the KFC.  He described the driver as a white male with long
black hair and a long black, shaggy beard, wearing a toboggan-style cap (which could have been a
mask) pushed back on his head.  Rowe did not see any African-Americans in the van, but he did see
three persons in KFC uniforms "hollering and screaming" in the van.  The next day, he heard about
the murders, but did not report his information immediately.  Rowe stated that he attempted to report
his information about two to three months later, even though he admitted that he told the grand jury
that he did not attempt to report this until one year after the murders. 
	Marsha Williams lived next to the oil field where the victims' bodies were found.  At 10:57
on the night of the murders, she saw a van, having only its parking lights on, pull into her driveway
and stop there for a minute, before driving away.  She admitted that she did not know what color the
van was, but that it was her impression that it was a darker color.  About seven to twelve minutes
later, she heard what sounded like four rapid gunshots nearby.  After a noticeable pause of
approximately five minutes, she heard what sounded like one more shot.  Gunshots were not unusual
for the area, so she did not report it.
	About a week after the murders, while driving into Kilgore, Sam Johnson nearly collided
with a white "service-type" van when the driver of the van ran a stop sign.  The van fit the
description given by Spagano, Hardee, Rowe, and Robinson as the van seen at the KFC.  Johnson
identified Hartsfield as the driver of the van. 
	During his grand jury testimony, Hartsfield testified that he lived with Elton Winston in the
early 1980s.  In March 1984, Winston was arrested while driving a white utility van. 
 E.	Other Evidence 
	In addition to finding the bloody box, investigators also found a bloody napkin from the back
work area of the KFC.  Years later, a DNA test revealed the blood matched that of co-defendant,
Pinkerton.  At the scene of the murders, Opie Hughes was found some distance away from the other
bodies.  Semen was found in the crotch of her pants; on testing, it did not match either Hartsfield,
Pinkerton, her husband, or any other suspect.  DNA testing did reveal that the semen was deposited
by a man who was predominantly of African-American descent. 
	Three of the victims were shot with two separate revolvers.  Two victims were shot twice
with the same weapon.  Seven shots appeared to have the same rifling characteristics, and since
revolvers only shoot six times, the ballistics expert concluded that one weapon must have been
reloaded or there was a third gun involved. 
 F.	Analysis 
	Hartsfield relies on Clayton, 235 S.W.3d 772. (12)  In Clayton, the victim was found in a park
near a car he had borrowed.  The victim had been shot multiple times and died at the scene.  Id. at
774.  The defendant's fingerprints were found in the car, in the victim's blood.  Id. at 775.  No one
ever saw the defendant in the park at any time prior to or after the shooting, and no other evidence
linked the defendant to the victim.  Id.  The defendant testified in his own defense and said he came
upon the car with the victim inside and got in to try to help him, but said he panicked and ran away
without getting help.  The court held that the bloody fingerprints were not direct evidence that the
accused shot the deceased and did not, standing alone, sufficiently establish that the accused did so. 
Id. at 780.  However, the Texas Court of Criminal Appeals held that the evidence was legally
sufficient evidence to uphold the defendant's conviction because the defendant fled the scene and
his explanation of how his fingerprints got in the car was implausible.  Id. at 782.  On remand for
a determination of factual sufficiency, the court of appeals upheld the conviction because
	weighing Clayton's dubious story against the cumulative force of the incriminating
circumstantial evidence, and giving due deference to the jury's determinations as to
the weight of the evidence and the credibility of witnesses, we cannot say that the
evidence offered at trial, as a whole, clearly revealed that the conviction was
inappropriate.

Clayton v. State, No. 13-03-00411-CR, 2008 WL 3850549, at *4 (Tex. App.--Corpus Christi June 5,
2008, pet. ref'd) (mem. op., not designated for publication) (citing Johnson, 23 S.W.3d at 8-9).
	Hartsfield also cites Vodochodsky v. State, 158 S.W.3d 502 (Tex. Crim. App. 2005).  In
Vodochodsky, the court found factually insufficient evidence to support a finding that the defendant
solicited, encouraged, directed, aided, or attempted to aid his roommate when his roommate prepared
and executed a plan to lure police to his house so he could kill them before killing himself.  Id. at
510.  The defendant knew of the shooter's plan, bailed the shooter out of jail "to do this," and went
with him to a gun shop where the shooter asked for and purchased various ammunition. The
defendant was also present when the shooter made a false 9-1-1 call in order to bring the police to
the shooter's residence.  Id. at 505-08.  In finding the evidence factually insufficient to support the
defendant's conviction, the court held that "the overwhelming weight of the evidence mitigates
against the conclusion that [the defendant] solicited, encouraged, directed, aided or attempted to aid
[the shooter] in committing the offense."  Id. at 510.  The court stated that "[the defendant] had the
bad luck of being the friend and roommate of a man determined to kill police officers and himself." 
Id. at 511.  In so holding, the court noted that:  1) the defendant did not participate in the purchase
of ammunition; 2) there was no evidence that the defendant actually did any affirmative act to assist
the shooter with the plan; 3) it was never established that there was a second shooter; 4) the
inconsistencies in the defendant's statements were minor; 5) in urging the shooter to wait, because
they did not yet have a plan, neither man specifically mentioned killing a peace officer; and 5) the
defendant's mention that he bailed the shooter out of jail "to do this" did not mention that it was part
of a plan to kill police officers.  Id. at 510-11. 
	This case is similar to Clayton and distinguishable from Vodochodsky in that in addition to
the physical evidence at the crime scene linking the defendant to the crime, there is also significant
circumstantial evidence supporting a reasonable inference that Hartsfield participated in the charged
offense. 
	The jury, as the trier of fact, is the sole judge of the credibility of the witnesses and the weight
of the evidence.  Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999).  When faced with
a record that supports conflicting inferences, we presume the trier of fact resolved any conflict in
support of the verdict.  See id.; Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).  Even
if contradictory evidence or witness testimony is compelling, the jury is the sole judge of what
weight to give to such testimony.  See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App.
2008); see also Goodman v. State, 66 S.W.3d 283, 285 (Tex. Crim. App. 2001).  We are required
to afford "almost complete deference to a jury's decision when that decision is based on an
evaluation of credibility."  Lancon, 253 S.W.3d at 705 (citing Marshall, 210 S.W.3d at 625). 
	To convict Hartsfield of the murders, under Section 7.02(b), the State had to prove:  1) that
Hartsfield was a party to a conspiracy to commit aggravated robbery; 2) that capital murder was
committed by either Hartsfield or by someone who was acting with him; 3) that the capital murder
was committed in furtherance of the conspiracy to commit aggravated robbery; and 4) that Hartsfield
should have anticipated that capital murder could be the result of the aggravated robbery.  Tex.
Penal Code Ann. § 7.02(b).  In order to convict Hartsfield of capital murder, it is not necessary that
the State prove he personally shot the victims, merely that he was acting with others in the
commission of an aggravated robbery, that the murders were committed in furtherance of the
robbery, and that he should have anticipated that murder could be the result of the robbery.  
	In this case, there is evidence that Hartsfield was identified as one of the robbers and that his
blood was at the scene of the crime.  At least two persons participated in the robbery; Hartsfield had
a male companion with him when he entered the KFC, stood in line, and then left and walked away. 
Hartsfield's blood and that of his cousin and co-defendant, Pinkerton, were found in the KFC. 
Forensic evidence indicates that at least two and possibly three perpetrators participated in the
murders.  At least two different guns were used to kill the victims, and due to the number of gunshot
wounds, there is evidence that a third gun may have been involved.   
	Because there had to be a sufficient number of perpetrators to subdue four victims while
another assaulted Mary Tyler and robbed the KFC, it is reasonable to infer that there were more than
two perpetrators of the robbery.  Considering the violent assault on Mary, the signs of a physical
struggle within the KFC, and the abduction of the five KFC employees, it is reasonable to infer that
anyone involved in the aggravated robbery should have anticipated murder could be the ultimate
result of the robbery. 
	The time line strongly suggests that Hartsfield, as a participant in the robbery, also
participated in or committed the murders.  The robbery was still in progress at 10:30 p.m. when
Hardee saw a white van oddly parked at the KFC.  At 10:57 p.m., Williams saw a van near the
murder scene, and just a few minutes later, she heard several gunshots, then a noticeable pause of
five minutes, and then one more gunshot.  Located on small, country roads, the murder scene was
fourteen miles from the KFC.  About a week after the murders, Hartsfield was seen driving a white
van similar to the one seen at the KFC. 
	From these facts, the jury was free to infer that the white van seen at the KFC during the
robbery was the same van that Williams saw near the murder scene and the same van that Hartsfield
was seen driving.  Further, the short time period between the robbery and the murders allowed the
jury to infer that Hartsfield and the other participants in the aggravated robbery also participated in
the murders because there was no time for third parties, wholly unrelated to the aggravated robbery,
to have subdued, kidnapped, and murdered the five victims.  The evidence that multiple guns were
used further supports an inference that Hartsfield must have at least anticipated that murders of the
victims would occur following the robbery.  
	This is a classic situation in which the credibility of the evidence and witnesses is the
paramount determination of the jury.  Here, the proof is not so weak that it must be disregarded.  We
find there is legally and factually sufficient evidence to support the jury's verdict and, therefore, we
must defer to the jury's determination, assume that any conflicting evidence or inferences were
resolved in favor of the guilty verdict, and overrule Hartsfield's first and second points of error. 
III.	The Trial Court Did Not Commit Error in Allowing Evidence of an Extraneous Offense

	After Hartsfield rested, the State offered evidence that Hartsfield committed a similar
extraneous crime three days after the KFC murders.  The State argued that Hartsfield's contention
that someone else committed the KFC murders opened the door for admission of Hartsfield's similar
extraneous offenses as direct and rebuttal evidence of Hartsfield's identity as one of the perpetrators
of the KFC murders.  Hartsfield contended that the extraneous evidence was inadmissible because
the mode or device of the extraneous offense was not sufficiently distinctive that it could be used to
identify Hartsfield. (13)  The trial court overruled Hartsfield's objection, admitted the extraneous
offense evidence for the limited purpose of identity, and gave a proper limiting instruction.  In his
third point of error, Hartsfield asserts that the trial court abused its discretion in admitting the
extraneous offense evidence.  We disagree. 
	A trial court's decision to admit or exclude evidence is reviewed under an abuse of discretion
standard.  McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005); Willover v. State, 70
S.W.3d 841, 845 (Tex. Crim. App. 2002).  A trial court does not abuse its discretion so long as the
decision to admit evidence is within the "zone of reasonable disagreement." Montgomery v. State,
810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh'g).  An appeals court may not substitute
its own decision for that of the trial court.  Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App.
2003).  If the record supports the trial court's decision on the admission of evidence, there is no
abuse of discretion, and the decision of the trial court will not be reversed.  Osbourn v. State, 92
S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379.
	Although the general rule is that evidence of extraneous crimes is not admissible, that
evidence can be admitted if it satisfies the requirements of the following two-pronged test:  (1) the
offense is relevant to a material issue in the case, other than the issue of the defendant's character;
and (2) the probative value of the evidence is not substantially outweighed by the danger of unfair
prejudice.  Prieto v. State, 879 S.W.2d 295, 297 (Tex. App.--Houston [14th Dist.] 1994, pet. ref'd). 
The material issues in each case are determined by the respective theories proffered by the State and
the defense.  See Bush v. State, 958 S.W.2d 503, 505 (Tex. App.--Fort Worth 1997, no pet.).  For
example, evidence of extraneous crimes may be admissible to show motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Tex. R. Evid. 404(b).  If
an objection is made to the admission of extraneous offense evidence, the proponent of the evidence
must then meet the burden of persuading the trial court that the evidence has relevance apart from
character conformity, that it tends to establish some elemental fact (such as identity), that it tends to
establish some evidentiary fact (such as motive, opportunity, or preparation leading inferentially to
an elemental fact), or that it rebuts a defensive theory.  Id.; Montgomery, 810 S.W.2d at 387-88; see
also Taylor v. State, 920 S.W.2d 319, 321 (Tex. Crim. App. 1996).  Put another way, the evidence
must be relevant to a fact of consequence contested in the case.  See Prince v. State, 192 S.W.3d 49,
54 (Tex. App.--Houston [14th Dist.] 2006, pet. ref'd). 
	Hartsfield put identity at issue in this case by contending that someone else, not he,
committed the KFC murders.  Throughout the trial, Hartsfield attacked or otherwise attempted to
undermine any evidence that he committed any act to satisfy the elements of capital murder by
supporting and advancing the theory that James Earl Mankins, Jr., (14) or someone else, committed the
charged crimes.  Through both cross-examination of the State's witnesses and direct examination
of his own witnesses, Hartsfield vigorously advanced the theory that Mankins or someone else, not
he, had been one of the perpetrators of the KFC murders.
 	Once Hartsfield placed his identity in issue, the State could offer evidence of an extraneous
offense to prove his identity if there was some distinguishing characteristic common to both the
extraneous offense and the offense for which appellant was on trial.  Lewis v. State, 674 S.W.2d 423,
425 (Tex. App.--Dallas 1984, pet. ref'd) (citing Ford v. State, 484 S.W.2d 727, 729 (Tex. Crim.
App. 1972)); see also Chambers v. State, 601 S.W.2d 360, 362 (Tex. Crim. App. [Panel Op.] 1980);
Baize v. State, 790 S.W.2d 63, 64 n.1 (Tex. App.--Houston [1st Dist.] 1990, pet. ref'd).  A
distinguishing characteristic is usually the accretion of small, sometimes individually insignificant,
details that marks each crime as the handiwork or modus operandi of a single individual.  Segundo
v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008).  No rigid rules dictate what constitutes
sufficient similarities; rather, the common characteristics may be proximity in time and place, mode
or manner of commission of the crimes, the person's dress, or any other elements which mark both
crimes as having been committed by the same person.  Id.
	It is well-established law that sufficient similarity may be shown by the proximity in time and
place of the extraneous offense to the offense for which the accused is being tried.  Johnson v. State,
68 S.W.3d 644, 651 (Tex. Crim. App. 2002); Lane v. State, 933 S.W.2d 504, 519 (Tex. Crim. App.
1996); Ford, 484 S.W.2d 729-30.  In Ransom v. State, 503 S.W.2d 810 (Tex. Crim. App. 1974), the
court held offenses to be sufficiently similar when:  (1) both offenses were robberies committed at
gunpoint; (2) the defendant was aided by a confederate; and (3) the offenses occurred in the same
area, three days apart.  Id. at 813.  Similarly, in Poullard v. State, both the extraneous offense and
offense charged were robberies committed at gunpoint, in the same geographic area, four days apart,
against a lone female victim working in a small store.  833 S.W.2d 273, 276 (Tex. App.--Houston
[1st Dist.] 1992, pet. ref'd).  In both cases, the court noted the close proximity in time and place
between the extraneous offense and the offense charged. 
	Hartsfield relies on Owens v. State, 827 S.W.2d 911 (Tex. Crim. App. 1992), wherein the
Texas Court of Criminal Appeals held an extraneous sexual assault inadmissible because the
characteristics of the extraneous offense were not sufficiently similar to those of the charged offense. 
The trial court admitted evidence of a prior sexual assault on the basis that such evidence established
a "system," and the Texas Court of Criminal Appeals analyzed that basis as one relating to Owens'
"modus operandi" or "methodology" and cited "identity" cases in support of its decision.  Id. at
914-15.  The defendant placed his hands inside the victims' garments, and both victims were the
defendant's minor daughters and were of similar age at the time of the offense.  Id. at 911.  However,
the court held the extraneous offense inadmissible and noted several important dissimilarities
between the two alleged offenses.  The offenses occurred years apart, and one of the assaults
continued over a period of two years and included intercourse, whereas the other assaultive behavior
consisted of only one isolated incident of illegal touching and digital penetration.  Id. at 916.  
	Here, as in Ransom and Poullard, the two offenses are robberies committed at gunpoint and
are also similar in their proximity in time and place.  The offenses occurred three days apart and in
the late evening or early night hours.  The offenses occurred in the same geographic area, as one
occurred in Tyler and the other occurred in nearby Kilgore.  Eyewitness testimony places Hartsfield
at the scene of the extraneous offense, and DNA evidence puts Hartsfield in the KFC on the night
of the murders.  Hartsfield had an African-American male accomplice with him during the
extraneous robbery and when he was seen in the KFC before the murders.  In both cases, the
perpetrators used a revolver, emptied the cash register, and rifled through the shelves beneath the
cash register.  In the KFC, the money bags were stolen, and in the Tyler Food Mart, the perpetrators
looked around and under the cash register and demanded a money bag. 
 	In determining a level of similarity between the offenses sufficient to establish identity, we
must take into account both the specific characteristics of the various offenses and the time interval
between them.  Johnson, 68 S.W.3d at 651.  The exactness that might be required of an offense
committed at a more remote period of time might not necessarily be required for an offense
committed within a very short period of time.  Id.  Here, the two offenses are notably close in
proximity in time and place, and share other significant similarities.  For the foregoing reasons, we
hold the extraneous offense evidence is relevant to prove identity and the trial court did not abuse
its discretion in admitting the evidence.
	Further, for this evidence to be admissible, it must be determined that the probative value of
the evidence is not substantially outweighed by the danger of unfair prejudice.  Prieto, 879 S.W.2d
at 297.  In making this determination, we should consider (1) how compellingly evidence of the
extraneous offense serves to make a fact of consequence more or less probable, (2) the potential that
the extraneous offense will impress the jury in some irrational but indelible way, (3) the trial time
needed to develop the evidence, and (4) the proponent's need for the extraneous offense evidence. 
Wheeler v. State, 67 S.W.3d 879, 888 & n.25 (Tex. Crim. App. 2002) (citing Lane v. State, 933
S.W.2d 504, 520 (Tex. Crim. App. 1996)).  We will examine each of these considerations.
	(1)	The issue of identity was presented from the opening statement until the closing
argument.  The robbery in Tyler occurred three days after the robbery and murders in Kilgore.  We
have previously listed the similarities in the robberies.  The evidence is very probative on the issue
of the identity of Hartsfield, a fact of major consequence.  
	(2)	While evidence of extrinsic crimes are by their nature prejudicial to the defendant,
the question is whether the jury is impressed in some irrational way.  This evidence came before the
jury after consideration by the trial court and was accompanied by an instruction of its limitations. 
A jury could rationally evaluate the import of the evidence on the issue of identity in accord with the
trial court's instruction.  The extraneous evidence was not as flagitious as the evidence in the primary
case and should not create such prejudice that the jury could not consider it for the proper purpose. 
See Taylor, 920 S.W.2d at 323. 
	(3)	The testimony concerning the extraneous offense consists of twenty-three pages in
the reporter's record.  The entire record consists of fourteen volumes, each of which is approximately
300 pages long.  Compared to the entirety of the record, this was less than one percent of the total. 
	(4)	This case was more than twenty-five years old by the time it was tried.  Much of the
evidence to connect Hartsfield to the murders was circumstantial and, as mentioned, the question of
the identity of Hartsfield even as to the robbery was seriously contested.  Under these circumstances,
we find the State had a considerable need to present this evidence. 
	The trial court abuses its discretion in admitting this evidence only if the danger of unfair
prejudice substantially outweighs the probative value.  We find the trial court did not abuse its
discretion in admitting the extrinsic crime evidence.  
	We affirm the judgment of the trial court.  


						Jack Carter
						Justice

Date Submitted:	October 21, 2009
Date Decided:		February 4, 2010

Publish
1. Due to the pretrial publicity involved with this case, the trial court granted the State's motion
to transfer venue, and this case, as well as the companion cases referred to in footnote two, were
transferred to the 361st Judicial District Court of Brazos County.  See Tex. Code Crim. Proc. Ann.
art. 31.02 (Vernon 2006).  Pursuant to Article 31.08, the appeal was filed with this Court.  Tex.
Code Crim. Proc. Ann. art. 31.08, §§ 1, 3 (Vernon Supp. 2009).
2. Hartsfield appeals this and four other convictions in which he raises identical issues, all
decided this date.  In cause number 06-09-00007-CR, he appeals his conviction for the murder of
David Maxwell; in cause number 06-09-00008-CR, he appeals his conviction for the murder of Mary
Tyler; in cause number 06-09-00009-CR, he appeals his conviction for the murder of Montgomery
Landers; and in cause number 06-09-00010-CR, he appeals his conviction for the murder of Joseph
Johnson.
3. Ashley and Kim Tyler left the KFC before the robbery.
4. Pinkerton is Hartsfield's first cousin and they were "running buddies."  In their briefs, both
Hartsfield and the State refer to Pinkerton as a co-defendant of Hartsfield.  According to the record,
Pinkerton entered a negotiated plea agreement and pled guilty to the offense of murder in these cases.
5. Nor did it match her husband's DNA.
6. DNA tests were not performed on the box or the napkin until DNA testing became available
more than a decade later. 
7. The stain was never tested, but the shelf was photographed.  None of the employees
remembered a stain on the shelf at the time they left the KFC on the night of the murders.
8. Killingsworth was a manager at the KFC who left the restaurant about 5:00 p.m., but
returned about 11:00 p.m. when called by the police.  
9. It was part of Ashley's job to straighten up the front of the restaurant and clean up any mess
that was left there before she left for the night.  She did not see any stain on the shelf. 
10. The chain of custody requirement for this box was previously litigated in Hartsfield's
perjury trial and was discussed by this Court at length.  See Hartsfield, 200 S.W.3d at 818, wherein
it was found the box had distinctive markings (the blood spatter) which was recognized by the
officer, which was a sufficient authentication of the item.  
11. Spagano testified that Hartsfield's companion did not order anything.
12. Hartsfield also cites Eiland v. State, 509 S.W.2d 596 (Tex. Crim. App. 1974), and Johnson
v. State, 530 S.W.2d 321 (Tex. Crim. App. 1975), for the point that fingerprints at the scene are
insufficient to establish guilt.  However, factual sufficiency was not at issue in either case, so they
are inapplicable.  In Eiland and Johnson, the issue was whether the trial court should have granted
a requested instruction that fingerprint evidence was only circumstantial evidence of murder.  Such
an instruction which requires that the circumstances "must exclude, to a moral certainty, every other
reasonable hypothesis except the defendant's guilt . . ." has been determined to be a confusing and
improper charge where the jury is properly instructed on the reasonable doubt standard of proof. 
Hankins v. State, 646 S.W.2d 191, 200 (Tex. Crim. App. 1981) (op. on reh'g).
13. Hartsfield also argued that the State had uncontroverted direct evidence of Hartsfield's
identity and the unfair prejudice of the evidence substantially outweighed its probative value.
14. Mankins was originally a suspect based on the finding of a torn fingernail in one of the
victim's jeans and an observation by officers that Mankins' right middle fingernail was torn off. 
After much attention was given to this theory, DNA testing in 1995 and 2003 determined the
fingernail remnant did not belong to Mankins. 
