                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-11-00444-CR


                             DERRICK LYNN LEWIS, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                              On Appeal from the 27th District Court
                                        Bell County, Texas 1
                      Trial Court No. 63971, Honorable Joe Carroll, Presiding

                                            May 29, 2013

                      OPINION ON MOTION FOR REHEARING
                     Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

        By opinion and judgment dated April 17, 2013, this Court affirmed the capital

murder conviction and sentence of life without parole of Appellant, Derrick Lynn Lewis.

By motion for rehearing, Appellant asserts the issue raised by his supplemental brief

was not disposed of by our earlier opinion, as required by Rule 47.1 of the Texas Rules



1
 Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. TEX. GOV=T CODE ANN. ' 73.001 (W EST 2005).
We are unaware of any conflict between precedent of the Third Court of Appeals and that of this Court on
any relevant issue. TEX. R. APP. P. 41.3.
of Appellate Procedure. 2 That issue challenges the constitutionality of his sentence

under Miller v. Alabama, 567 U.S. __, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), a

decision handed down by the United States Supreme Court subsequent to the filing of

his original brief. His motion does not challenge this Court’s disposition of his original

three issues. Having considered the merits of his supplemental issue, we grant the

motion for rehearing, 3 withdraw our original opinion and judgment, and issue this

opinion in lieu thereof.


        By his original brief, Appellant maintains (1) the trial court erred in allowing the

State’s witness to testify after a violation of Rule 614 of the Texas Rules of Evidence,

(2) the evidence is legally insufficient to support his conviction when the indictment

alleges retaliation against a person other than the victim of the murder as the

aggravating circumstance and (3) the trial court erred in admitting the State’s computer

generated animation.         By his supplemental brief, he contends his sentence of life

without parole is unconstitutional. We affirm the conviction, but reform the punishment

to delete the phrase “without parole.” As reformed, the trial court’s judgment is affirmed.


                                        BACKGROUND FACTS


        On Friday, August 22, 2008, Constable Thomas Prado was at the Emerald

Green Apartments searching for Appellant. The apartment manager, Jamie Lujan, and

a maintenance worker, Mark Jimenez, informed Prado that Appellant could be located

at apartment 214 of the Beverly Arms Apartments, an adjoining complex. Although
2
 It is within the sound discretion of the appellate court whether to consider new issues raised in a
supplemental or amended brief. See Rochelle v. State, 791 S.W.2d 121, 125 (Tex.Crim.App. 1990).
3
 The State was invited to respond to Appellant’s motion for rehearing but did not do so. See TEX. R. APP.
P. 49.2.

                                                   2
Appellant was not at that apartment, Jimenez later pointed out a vehicle driven by Andre

Hamilton, in which Appellant might be a passenger, and Prado waved down that

vehicle. Although Appellant was not in the vehicle, a passenger, Montreal Wright, was

arrested on an outstanding warrant and for carrying a pistol. According to witnesses,

Appellant was extremely upset over Wright’s arrest.


       When Jimenez left work that day, he was at a stop sign when four males made

threatening gestures towards him.            He called Lujan and told him he would not be

coming back to work. Lujan assured him it would be “okay” to return and he did so the

following Monday. After returning to work Jimenez noticed an individual, later identified

as Appellant, following him around for a few days while he was picking up the grounds.

Because Appellant, Hamilton and others were angry with Jimenez for pointing out

Hamilton’s vehicle, which had led to Wright’s arrest, they conspired to “get” Jimenez.

There was conflicting testimony on whether “getting” him meant shooting him or beating

him.


       On August 28, 2008, Jimenez arrived at work at 7:50 a.m. and Lujan was already

in the office. They noticed a male, later identified as Anthony Thomas, walk by the

office. Thomas had been previously banned from the complex. Jimenez left the office

to do some work at a nearby apartment complex. Approximately twenty minutes later,

he heard an ambulance. 4         When he returned to the apartment complex, he observed

the ambulance as well as police cars. He was told the manager had been shot and saw




4
Lujan called 911 at 8:28 a.m. to report that he had been shot.


                                                    3
Lujan being carried out on a stretcher. Lujan suffered five gunshot wounds and on

September 1, 2008, he died as a result of those wounds.


       Yolanda Evans, a tenant at the Beverly Arms Apartments, testified that she was

looking out her window on the morning of the shooting when she observed Appellant,

Hamilton and Thomas cover their faces with bandanas while standing outside the

manager’s office at the Emerald Green complex. 5 Soon thereafter, she heard gunshots,

followed by three individuals running from the area. Lakeisha Davis, a tenant at the

Beverly Arms Apartments, testified she heard a noise and looked out her window and

saw Appellant, Hamilton and Thomas running up the stairs of the Beverly Arms

complex. Thomas was carrying a black bag. 6 Another witness testified that she was

working on her car when she heard shots and later saw the suspects run into apartment

number 112 where Thomas’s cousin lived. Thomas’s cousin testified that shortly after

hearing gunshots, Appellant and Hamilton entered his apartment and Thomas showed

up not long thereafter.


       Numerous officers arrived at the scene.             After interviewing witnesses, they

determined the suspects were holed-up in an apartment at the Beverly Arms. After

SWAT arrived, an officer trained as a negotiator was able to convince the three

suspects to come out of the apartment and they were arrested. They were identified as

Appellant, Hamilton and Thomas.


5
 Most witnesses were tenants of the Beverly Arms and from their windows could see the back of the
Emerald Green Apartments. An alley separated the two complexes.
6
There was confusion among different witnesses on whether all three suspects ran up the stairs or
whether Thomas ran upstairs to hide the black bag before returning downstairs to join Appellant and
Hamilton in apartment number 112.


                                                4
       On the morning of the shooting, Inga McCook, Thomas’s girlfriend, was cleaning

when she heard a boom similar to a dumpster lid closing. She went to look out her

window and saw Thomas carrying a black bag. Suddenly, she realized that Thomas

was in her apartment and he told her, “[t]hey shot him. They shot . . . the [racial slur].”

She ordered him out of her apartment. When he left her apartment, Thomas did not

have the black bag on his person.


       McCook also testified that Thomas called her from jail to tell her he had hidden

the black bag in a Christmas tree box in her bedroom closet. She found the bag,

discovered it had two guns inside and drove down a country road to dispose of them.

When she returned to her apartment, investigators were waiting to question her and she

eventually led them to the area where she had tossed the guns.


       Appellant, Hamilton and Thomas were each tested for gunshot primer residue.

An expert testified that a classic primer mixture consists of three compounds and a

particle of primer residue can contain one, two or all three of those compounds. He

further testified that a particle that contains all three compounds usually results from the

discharge of a firearm. The policy of the Texas Department of Public Safety is that any

gunshot primer residue collected more than four hours after a shooting is usually not

analyzed because too much time has passed. An exception is made when a district

attorney requests testing. However, under those circumstances, interpretations are not

drawn from the results.


       In the underlying case, Appellant’s gunshot primer residue test was conducted

within the four hour window. Test results were consistent with him having recently fired


                                             5
a weapon, being nearby when a weapon was fired or contacting some surface with

gunshot primer residue on it. Results from the gunshot residue collected from Thomas,

which was also timely obtained, did not show any gunshot primer residue particles on

his hands, but some was detected on the pocket of his shorts. Hamilton’s test was not

conducted within the four hour window; however, his results were consistent with him

having fired a weapon or having been in the proximity to or touching a weapon that had

been fired. Due to the time frame issue, the expert did not draw any conclusions from

those results.


       Thomas originally agreed to testify against Appellant and Hamilton at their trials

in exchange for an offer to plead guilty to a lesser included offense. Following this

development, the State moved to jointly try Appellant and Hamilton. The trial court

granted that motion and they were subsequently tried together in the same proceeding.

Eventually however, at Thomas’s plea hearing, he withdrew from his plea bargain and

instead entered a plea of guilty to the offense of capital murder. He testified that he

initiated the shooting and “it just wouldn’t seem right blaming two individuals that

absolutely had, you know, nothing to do with the whole situation, sir.”      At trial, an

excerpt from Thomas’s plea hearing was offered into evidence; however, the State’s

objection was sustained. It was subsequently introduced by the defense for purposes of

appeal.


                                 PROCEDURAL HISTORY


       On the date the offense was committed, appellant was sixteen years of age. He

was originally detained as a juvenile pursuant to applicable provisions of the Texas


                                            6
Family Code, but was subsequently certified to be tried as an adult. See TEX. FAMILY

CODE ANN. § 54.02 (WEST SUPP. 2012). An order transferring jurisdiction to a criminal

district court was entered on November 4, 2008.


                                         ANALYSIS


                  ISSUE ONE – VIOLATION OF “THE RULE” OF WITNESSES


       By his first issue, Appellant alleges the trial court abused its discretion in

admitting the testimony of State witnesses Lakeisha Davis and Byronishia Moore after

they violated “The Rule” of witnesses, Rule 614 of the Texas Rules of Evidence. We

disagree.


       Rule 614 provides that at the request of a party or on its own motion, the trial

court may exclude witnesses to prevent them from hearing testimony of other

witnesses. TEX. R. EVID. 614. A violation of the rule is not in itself reversible error, but

only becomes so where the objected-to testimony is admitted and the complaining party

is harmed.   Webb v. State, 766 S.W.2d 236, 239-240 (Tex.Crim.App. 1989).              Two

criteria that have been suggested for determining injury or prejudice are (1) whether the

witness actually conferred with or heard testimony of other witnesses and (2) whether

the witness’s testimony contradicted testimony of a witness from the opposing side or

corroborated testimony of a witness he or she had conferred with or heard. Bell v.

State, 938 S.W.2d 35, 50 (Tex.Crim.App. 1996) (citing Webb, 766 S.W.2d at 240). It is

within the trial court’s discretion whether to exclude testimony for a violation of Rule

614. Webb, 766 S.W.2d at 240.



                                             7
      During a hearing outside the jury’s presence, the State questioned Davis and

Moore about a conversation that occurred in a motel room after Wright’s arrest about

“getting” Jimenez. During her testimony, Moore refused to answer numerous questions

posed by the prosecutor.      When the prosecutor requested a break, Moore was

permitted to leave the stand and sit outside the courtroom. Unbeknownst to the court,

during the break, Moore and Davis conferred about questions the prosecutor was

asking when a deputy overheard them and separated them.


      After the trial court had already overruled several hearsay and confrontation

objections, that Davis’s and Moore’s testimony was admissible, it came to defense

counsel’s attention that Rule 614 may have been violated and counsel for both

defendants requested the trial court explore the violation. The deputy who overheard

the witnesses testified that all he heard was one of them say, “[t]hat’s what they had

asked me as well.” The trial court questioned Davis about her conversation with Moore.

She claimed they did not discuss anything other than the manner in which the State

repeatedly asked the same question in different ways. The trial court did not see a

need to question Moore.


      Defense counsel moved to exclude both witnesses from testifying. The State

responded that the witnesses were not really discussing their testimony, only the

manner of questioning. Agreeing with the State, the trial court felt that if a violation

occurred, it was harmless. Both Appellant and Hamilton objected to the ruling.


      Once the jury returned, Davis and Moore testified. Davis testified that she told

the police two months after the shooting that Appellant, Hamilton, Thomas and another


                                           8
individual identified as C.J. talked about “getting” Jimenez. During cross-examination,

however, she could not recall whether Hamilton was involved in the discussion and was

evasive on questions concerning a conspiracy to get Jimenez. Moore testified there

was a conversation about beating up Jimenez but could not recall who said what or who

was present during the discussion. She denied there was a conversation about killing

Jimenez.


       During the questioning to determine whether Rule 614 had been violated, the

defense did not produce any evidence that Davis and Moore conferred about each

other’s testimony. Neither was there any evidence that their testimony contradicted the

testimony of a defense witness or that their testimony corroborated each other’s. We

conclude the defense failed to establish a violation of Rule 614 and the trial court did not

abuse its discretion in admitting the testimony of Davis and Moore.           Issue one is

overruled.


                    ISSUE TWO -- LEGAL SUFFICIENCY OF THE EVIDENCE


       By his second issue, Appellant maintains the evidence is legally insufficient to

support his conviction for capital murder when the indictment alleges retaliation against

a person other than the victim of the murder as the aggravating circumstance elevating

the offense of murder to capital murder. We disagree.


       The only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense the State is required

to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443

U.S. 307, 33 S.Ct. 2781, 61 L.Ed.2d 560 (1979). See Brooks v. State, 323 S.W.3d 893,

                                             9
912 (Tex.Crim.App. 2010). Under that standard, in assessing the sufficiency of the

evidence to support a criminal conviction, this Court considers all the evidence in the

light most favorable to the verdict and determines whether, based on that evidence and

reasonable inferences to be drawn therefrom, a rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S.

at 319; Brooks, 323 S.W.3d at 912. We measure the legal sufficiency of the evidence

by the elements of the offense as defined by a hypothetically correct jury charge. Malik

v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In our review, we must evaluate

all of the evidence in the record, both direct and circumstantial, whether admissible or

inadmissible.   Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App. 1999), cert.

denied, 529 U.S. 1131, 120 S.Ct. 2008, 146 L.Ed.2d 958 (2000).            We must give

deference to the responsibility of the trier of fact to fairly resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences from basic facts to

ultimate facts. Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007).


      A person commits capital murder if he commits murder as defined in section

19.02(b)(1) and intentionally commits the murder in the course of committing or

attempting to commit, among other offenses, the offense of retaliation. TEX. PENAL

CODE ANN. § 19.03(a)(2) (W EST SUPP. 2012).          A person commits murder if he

“intentionally or knowingly causes the death of an individual.” Id. at § 19.02(b)(1). See

Adames v. State, 353 S.W.3d 854, 861-62 (Tex.Crim.App. 2011), cert. denied, 2012

U.S. LEXIS 2268, 132 S.Ct. 1763, 182 L.Ed.2d 533 (2012).             A person commits

retaliation if he intentionally or knowingly harms or threatens to harm another by an

unlawful act in retaliation for or on account of the service or status of another as an


                                           10
informant. TEX. PENAL CODE ANN. § 36.06(a)(1)(A) (W EST 2011). An informant is a

person who has communicated information to the government in connection with any

governmental function. Id. at 36.06(b)(2).


       By amended indictment, Appellant was charged with intentionally causing the

death of Jamie Lujan . . . in the course of committing or attempting to commit the

offense of retaliation against Mark Jimenez.         The charge instructed the jury on

transferred intent, the law of parties and criminal responsibility for conduct of another as

follows:


       [a] person is nevertheless criminally responsible for causing a result if the
       only difference between what actually occurred and what he desired,
       contemplated or risked is that:

              (1) a different offense was committed; or

              (2) a different person or property was injured, harmed or otherwise
              affected.

       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 both.

       Each party to an offense may be charged with commission of the offense.

       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 solicits, encourages, directs, aids, or attempts to aid the other
       person to commit the offense.

       If, 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.

See TEX. PENAL CODE ANN. §§ 6.04(b), 7.01(a) & (b), 7.02(a)(2) & (b) (W EST 2011).



                                             11
      Conspiracy requires an agreement with one or more persons that they or one or

more of them engage in conduct that would constitute the offense; and the person or

one or more of them performs an overt act in pursuance of the agreement. See TEX.

PENAL CODE ANN. § 15.02(a) (W EST 2011). The essential element of conspiracy is the

agreement to commit the crime. Williams v. State, 646 S.W.2d 221, 222 (Tex.Crim.App.

1983). A person may be guilty of conspiracy by doing nothing more than agreeing to

participate in the conspiracy so long as another co-conspirator does some overt act in

furtherance of the conspiracy. Walker v. State, 828 S.W.2d 485, 487 (Tex.App.—Dallas

1992, pet. ref’d).   However, if the evidence shows there was no actual, positive

agreement to commit a crime, the evidence is insufficient to support a conviction for

conspiracy.   Brown v. State, 576 S.W.2d 36, 43 (Tex.Crim.App. [Panel Op.] 1978).

Commission of the underlying substantive offense is not an essential element of

conspiracy. McCann v. State, 606 S.W.2d 897,898 (Tex.Crim.App. [Panel Op.] 1980).

Since direct evidence of intent is rarely available, the existence of a conspiracy can be

proven through circumstantial evidence.         Rhoten v. State, 299 S.W.3d 349, 351

(Tex.App.—Texarkana 2009, no pet.).


      Nothing in section 19.03(a)(2) of the Penal Code requires that the intended victim

of the aggravating offense must also be the murder victim. See Chirinos v. State, 2011

Tex.App. LEXIS 147, at *14 n.3 (Tex.App.—Houston [14th Dist.] 2011, pet. ref’d).

Appellant does not cite this Court to any authority holding otherwise and we see no

reason to read such a requirement into the statute.


      Jimenez provided information to Constable Prado, a government official, on the

possible whereabouts of Appellant. Thus, he falls within the definition of an informant

                                           12
for purposes of the retaliation statute. Jimenez testified that he felt threatened when

four individuals made gestures to him when he left work the same day he gave that

information to Prado. McCook, who lived in an upstairs apartment at the Beverly Arms,

testified that Thomas told her Appellant and Hamilton blamed Jimenez for Wright’s

arrest and were plotting against him. Lakeisha Davis testified she had told the police

that Appellant, Hamilton, Thomas and others were going to “get” the maintenance man

[Jimenez]. Although she wavered in her testimony before the jury on whether Hamilton

was present during the conversation, she did testify that the group talked about shooting

the maintenance man.


       Byronishia Moore, Appellant’s girlfriend and a tenant at the Beverly Arms,

testified she and Appellant went to a motel room with a group a few days after Wright

was arrested.     While there, they engaged in a conversation about getting the

maintenance man. She denied any conversation about killing Jimenez and just thought

the group was conspiring to beat him up.         We conclude the evidence shows that

Appellant conspired with others to harm or threaten to harm Jimenez in retaliation for

providing information to Constable Prado that lead to Wright’s arrest.


       Appellant is guilty of Lujan’s murder regardless of which conspirator actually fired

the fatal shots. Thus, the evidence is legally sufficient to support the jury’s verdict that

Appellant, as a principal or party, murdered Jamie Lujan while in the course of

attempting to commit the offense of retaliation against Mark Jimenez as alleged in the

indictment. Issue two is overruled.




                                            13
                            ISSUE THREE – ADMISSION OF ANIMATION


        By his third issue, Appellant alleges error by the trial court in admitting State’s

Exhibit 35A, 7 a computer generated three-dimensional (“3-D”) time elapse animation

that purportedly reconstructs events surrounding the shooting, as viewed from Evans’s

perspective. The animation is approximately 120 seconds in length and purportedly

portrays her view from the bedroom window of her apartment and then from her front

door. In the animation, three non-descript, identical, 3-D figures are seen standing in

the breezeway adjacent to a non-descript single level box-like object, purportedly

representing the office at the Emerald Green Apartments.                    The figures pause for

approximately five seconds at the corner of that object and then disappear around a

corner to the left. Approximately ten seconds later, seven loud gun shots are heard, all

of the same decibel, but with various time lapses in between each shot. Two seconds

after the last shot, the three figures are seen running through the breezeway in the

opposite direction until they disappear to the right.            The perspective then changes,

purportedly moving from Evans’s bedroom window to the front door of her apartment.

Thirty-two seconds later, the animation portrays a single figure running from left to right

across the screen.


        Leading up to the admission of the animation, Yolanda Evans testified she knew

Appellant and Hamilton through their families.              Just before the shooting, she was

looking out her apartment bedroom window and saw Appellant, Hamilton and Thomas

standing in the alley near the Emerald Green Apartment office covering their faces with


7
 Exhibit 35 is the animation with audio. Exhibit 35A is the animation sans audio. Unless otherwise
specifically noted, for purposes of this opinion we will refer to the exhibit simply as “the animation.”

                                                  14
bandanas. When she inquired into their activity, they told her to stop being nosy. She

ignored their warning and watched them go around the corner toward the office, which

was out of her eyesight. She testified she heard “maybe five” shots and then saw the

three individuals running. She witnessed Thomas and Appellant passing something

back and forth. She momentarily lost sight of them in a blind spot then heard footsteps

going upstairs. She moved from her window to her front door where she witnessed

Thomas almost at the top of the stairs. Within seconds, she saw Thomas running down

the stairs with a black bag in his hands and “looking scared.”


      After Evans testified before the jury, in a hearing outside the jury’s presence, she

was questioned by the State for the purpose of authenticating the animation. While

Evans did state that the animation “accurately” depicted the view from her apartment

window and then from her front door on August 28, 2008, cross-examination seemed to

establish otherwise. Some of the questions related to the lack of a window screen in

the animation and the fact that her building sits at a higher elevation than portrayed in

the animation. Even though the gunshots in the animation were all the same decibel,

other evidence established that the victim sustained wounds from two different caliber

weapons, a .22 and .40 caliber.      Cross-examination further revealed that while the

suspects were of different body weights and heights, the suspects in the animation were

identical. Additionally, although the number of gunshots heard in the animation was

seven, Evans testified she heard “maybe five.”


      Numerous objections were lodged to the admission of the animation including

relevance, probative value versus unfair prejudice, confusion of the issues, and the



                                            15
inaccurate reflection of Evans’s testimony. All objections were overruled and Evans

was excused but was asked to leave a contact number.


       Although the animation was identified by Evans in her testimony outside the

presence of the jury, the State sought to introduce the exhibit before the jury through the

testimony of the person who created the animation, Officer Joe Fielder, an accident

reconstructionist.   Fielder testified that he used crime scene measurements,

photographs, Evans’s statements and an accident reconstruction computer software

program to create the animation.


       The State then asked to publish the exhibit, whereupon defense counsel

requested assurance that the record reflected their prior objections. At that point, the

judge asked counsel to approach and inquired as to Evans’s whereabouts.                 He

expressed the following concern:


       I just would expect that she should be here to testify to the jury that that’s
       the way it happened. I mean, that’s just simple enough, you know. He
       places it. She looks at it. She says that’s the way it happened. I mean, to
       me, that’s what you need.

       The State responded that Officer Fielder was sufficient to sponsor the exhibit

before the jury and that Evans had already established its admissibility. In ruling the

animation admissible, the judge added, “[s]o, okay, I guess so. But I just – That’s not

exactly the way I thought it was going to unwind.” Defense counsel then made hearsay

and confrontation clause objections which were overruled. The exhibit was admitted

and played for the jury. In ruling the animation admissible, the trial court likened it to

admission of a photograph, a visual aid for the jury. Notwithstanding its ruling, the trial



                                            16
court again expressed concern in Evans not being available during Officer Fielder’s

testimony to authenticate the animation.


      The defense asked to have Officer Fielder qualified as an expert before testifying

about the animation. That objection was also overruled. During cross-examination,

Officer Fielder admitted to discrepancies in the details of the animation but explained

that some details were omitted because they require more memory to run the computer

program. He testified that the number of shots heard in the animation was based on the

number of shell casings found at the scene.          Following Officer Fielder’s cross-

examination, the trial court announced, “[b]ased on your cross, I’m going to sustain the

objection to the audio.” Counsel for Appellant commented the ruling was “a little late.”

Thereafter, the court instructed the jury to disregard the audio portion of the computer

generated animation, i.e., the seven gunshots. During redirect testimony, the court

excused the jury and asked the parties if they had previously agreed to the animation

during pretrial discovery. Defense counsel advised the court that they had only been

made aware of it a few days prior to trial. The court reiterated that the animation was

admissible, but that the State had not proven the audio portion to be fair and accurate.


      Appellant contends admission of the animation violated Rules 602 and 701 of the

Texas Rules of Evidence because Fielder lacked sufficient personal knowledge of the

details it purports to reflect, such as placement of the individuals, elapsed time between

distinguishable events, number and volume of gunshots, and the direction and speed of

travel of the individuals portrayed.   Appellant contends that because Fielder lacked

sufficient personal knowledge of those details, as a layman he could only render an

opinion or inference rationally based on the perception of a witness with personal

                                           17
knowledge of those details, to-wit: Evans. He further argues that, even as an expert, his

opinions and inferences are limited to the facts or data upon which an expert in his field

of expertise would reasonably rely and that the perceptions of Evans lacked sufficient

detail for him to speculate as to certain details, rendering the animation inadmissible.

While we ultimately agree the trial court erred in admitting the animation, we conclude

the error was harmless.


       “A computer animation is merely a series of images generated by a computer

that serves as demonstrative evidence. It may, for example, illustrate what a witness

saw, demonstrate for the jury the general principles that underlie an expert opinion, or

depict an expert’s theory of how an accident occurred. In each such instance, the

evidence may be authenticated by the witness’s testimony that the computer animation

presents a fair and accurate depiction . . . [of] what they purport to represent. If they do

not, they will not be admissible.”      Steven Goode, The Admissibility of Electronic

Evidence, 29 Rev. Litig. 1, 10 (Fall 2009).


       The use of animations to depict a crime scene has been approved by Texas

courts. The State cites Mendoza v. State, No. 13-09-00024-CR, 2011 Tex. App. LEXIS

4378 (Tex.App.—Corpus Christi 2011, no pet.) and Murphy v. State, No. 11-10-0150-

CR, 2011 Tex.App. LEXIS 7230 (Tex.App.—Eastland 2011, no pet), as authority for the

admissibility of such animations. In Mendoza, a computer generated three-dimensional

diagram of the crime scene was produced using a commercially available software

program. From that opinion it appears as if the animation depicted nothing more than a

three-dimensional rendering of the crime scene showing possible bullet trajectories. In

affirming the ruling of the trial court in admitting that evidence, the Corpus Christi Court

                                              18
of Appeals noted that diagrams are generally admissible to explain the testimony of a

witness and render it more intelligible. 2011 Tex. App. LEXIS 4378, at *41. Nothing in

the Mendoza opinion approves the use of speculative animations showing anything

more than documented facts.


       Similarly, in Murphy v. State, No. 11-10-0150-CR, 2011 Tex. App. LEXIS 7230

(Tex.App.—Eastland 2011, no pet.), the Eastland Court of Appeals approved the use of

a computer generated animation of a crime scene. In Murphy, the supporting witness

testified that he was a police officer assigned to the traffic division of the Midland Police

Department, and that his duties included accident investigations and preparing accident

reconstructions. He indicated that the purpose of the animation in question was simply

to show the amount of distance covered by two vehicles in a given period of time in

order to show the relative positions of the vehicles in the roadway. Unlike the animation

in this case, he also testified that all the information and assumptions he used to

generate the animation were based on speed and distance information actually known

to him or other investigating officers. After reviewing the animation, the court found that

the factual discrepancies depicted did not cause the probative value of the evidence to

be substantially outweighed by any unfair prejudice from its admission.


       The animations in both Mendoza and Murphy depicted inanimate objects based

on quantifiable measurements. In this case, however, the animation attempts to portray

the actions of at least four persons.     With respect to animations involving animate

objects, the Texas Court of Criminal Appeals has said, “[a]ny staged, re-enacted

criminal acts or defensive issues involving human beings are impossible to duplicate in

every minute detail and are therefore inherently dangerous, offer little in substance and

                                             19
the impact of re-enactments is too highly prejudicial to insure the State or the defendant

a fair trial.” Miller v. State, 741 S.W.2d 382, 388 (Tex.Crim.App. 1987). (quoting Lopez

v. State, 651 S.W.2d 413, 414 (Tex.App.—Fort Worth 1983), opinion withdrawn by

Lopez v. State, 667 S.W.2d 624 (Tex.App.—Fort Worth 1984), which opinion was

reversed on other grounds, Lopez v. State, 664 S.W.2d 85 (Tex.Crim.App. 1985).

“[T]he artificial recreation of an event may unduly accentuate certain phases of the

happening, and because of the forceful impression made on the minds of the jurors by

this kind of evidence, it should be received with caution.” Lopez, 651 S.W.2d at 414

(quoting People v. Dabb, 32 Cal.2d 491, 498, 197 P.2d 1, 5 (1948)). This is especially

true where the event sought to be depicted is simple, the testimony adequate, and the

animation adds nothing more than a one-sided, manipulated visual image to the mental

picture already produced in the mind of the jurors by the oral testimony of an eye-

witness who has been subjected to the crucible of cross-examination.


      We review a trial court’s ruling on the admissibility of this exhibit under an abuse

of discretion standard. Coble v. State, 330 S.W.3d 253, 272 (Tex.Crim.App. 2010). We

must uphold the trial court’s ruling if it was within the zone of reasonable disagreement.

Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000).


      Rule 602 provides that a witness may not testify to a matter unless evidence is

introduced sufficient to support a finding that the witness has personal knowledge of the

matter. TEX. R. EVID. 602. Rule 701 provides that if a witness is not testifying as an

expert, his testimony in the form of opinions or inferences is limited to those which are

(a) rationally based on the perception of the witness and (b) helpful to a clear

understanding of the witness’s testimony or the determination of a fact in issue. TEX. R.

                                           20
EVID. 701. The perception requirement of Rule 701 is consistent with the personal

knowledge requirement of Rule 602.         See Furrow v. State, 943 S.W.2d 895, 898

(Tex.Crim.App. 1997). See also Madrigal v. State, 347 S.W.3d 809, 814 (Tex.App.—

Corpus Christi 2011, pet. ref’d). It requires the proponent of the lay opinion testimony to

establish that the witness has personal knowledge of the events upon which his opinion

is based. Furrow, 943 S.W.2d at 898. If the proponent of the evidence cannot establish

personal knowledge, the trial court should exclude the testimony. Id.


       Before State’s Exhibit 35 was admitted, the defense asked to have Fielder

qualified as an expert. That objection was overruled and he testified as a lay person.

He testified that by using crime scene measurements, photographs, Evans’s statements

and an accident reconstruction computer software program, he was able to create the

animation. Nothing in the record, however, supports many of the details contained in

the animation. Those details were provided by nothing more than pure speculation on

his part. Accordingly, we conclude the trial court abused its discretion in admitting the

computer generated animation.


       Finding error in the admission of the animation does not, however, end our

inquiry.   The admission of evidence in violation of an evidentiary rule is non-

constitutional error. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). We

must disregard the error if it did not affect Appellant’s substantial rights. Tex. R. App. P.

44.2(b). We review the entire record to ascertain the effect or influence on the verdict of

the wrongfully admitted evidence. Barshaw v. State, 342 S.W.3d 91, 93 (Tex.Crim.App.

2011); Motilla v. State, 78 S.W.3d 355-56 (Tex.Crim.App. 2002). Reversal is required

for non-constitutional error if the reviewing court has grave doubt that the result of the

                                             21
trial was free from the substantial effect of the error. Burnett v. State, 88 S.W.3d 633,

637 (Tex.Crim.App. 2002). “Grave doubt” means that “in the judge’s mind, the matter is

so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of

the error. Thus, in cases of grave doubt as to harmlessness the petitioner must win.”

Id. at 637-38 (citing O’Neal v. McAninch, 513 U.S. 432 436, 115 S.Ct. 992, 130 L.Ed.2d

947 (1995)).


      The crux of the case against Appellant was linking him to the conspiracy to get

Jimenez.     Davis and Moore testified that Appellant entered into an agreement with

others to retaliate against Jimenez for giving Constable Prado information which led to

the arrest of his friend. The animation did little to answer that question. Moreover, the

improper admission of evidence is harmless if the trial record contains other, properly

admitted evidence that is probative of the same manner. See Saldano v. State, 232

S.W.3d 77, 102 (Tex.Crim.App. 2007). Considering the entirety of the record, including

the contested issues, we conclude that Appellant’s substantial rights were not affected

by admission of the animation and that the error in admitting it was harmless. See

generally Miller v. State, 741 S.W.2d 382, 388 (Tex.Crim.App. 1987).       Issue three is

overruled.


                 SUPPLEMENTAL ISSUE – CONSTITUTIONALITY OF SENTENCE


      In 2008, when the offense occurred, section 12.31 of the Texas Penal Code

provided that “[a]n individual adjudged guilty of a capital felony in a case in which the

state does not seek the death penalty shall be punished by imprisonment in the

institutional division for life without parole.” See Act of May 28, 2005, 79th Leg., R.S.,


                                           22
ch. 287, § 1, 2005 Tex. Gen. Laws 2705 (emphasis in original Act).                         Effective

September 1, 2009, (subsequent to the date the offense occurred, but prior to trial) the

Legislature amended section 12.31(a) of the Texas Penal Code to provide that “[a]n

individual adjudged guilty of a capital felony in a case in which the state does not seek

the death penalty shall be punished by imprisonment in the Texas Department of

Criminal Justice for: (1) life, if the individual’s case was transferred to the court under

Section 54.02, Texas Family Code, or (2) life without parole.” In conjunction with that

amendment, the Legislature also amended section 12.31(b) to provide that in a capital

case in which the state does not seek the death penalty, prospective jurors shall be

informed that “a sentence of life imprisonment is mandatory on conviction of the capital

felony, if the case was transferred to the court under Section 54.02, Family Code. . . .”

See TEX. PENAL CODE ANN. § 12.31(a) & (b) (WEST 2011).


       In his Supplemental Brief, Appellant contends that because he was sixteen years

old when his crime was committed, and because his case was transferred to the trial

court under section 54.02 of the Texas Family Code, assessment of the sentence of life

without parole violates the Eighth Amendment to the United States Constitution. In

support of his claim, Appellant cites Miller v. Alabama, 567 U.S. ___, 132 S.Ct. 2455,

183 L.Ed.2d 407 (2012), 8 decided June 25, 2012, in which the United States Supreme

Court held that, as to a criminal defendant who was under the age of eighteen at the

time when he committed a capital crime, the mandatory imposition of life without the

possibility of parole violates the Eighth Amendment’s prohibition of “cruel and unusual

punishments.”

8
 The Miller opinion actually addresses two separate cases, No. 10-9646, Miller v. Alabama and No. 10-
9647, Jackson v. Hobbs.

                                                 23
      Miller, a fourteen year old at the time of his offense, was charged with murder in

the course of arson, a capital offense under Alabama law. His case was removed to

adult court and, following conviction, the trial court imposed the statutorily mandated

punishment of life without parole in accordance with Alabama law. 132 S.Ct. at 2463.

Jackson, also fourteen years old at the time of his offense, was charged with capital

felony murder and aggravated robbery in connection with the robbery of a video store.

An Arkansas jury convicted him of both crimes and the trial court imposed a mandatory

sentence of life imprisonment without the possibility of parole in accordance with

Arkansas law. Id. at 2461. In both cases, the Supreme Court held that a sentencing

scheme requiring the mandatory imposition of a life sentence without parole, in a

homicide case where the criminal defendant was under the age of eighteen at the time

the crime was committed, violated the Eighth Amendment’s prohibition of cruel and

unusual punishment. Id. at 2460.


      Here, there is evidence in the record that Appellant was sixteen years old when

he committed the instant offense, and the State does not contend otherwise. The

offense was committed on or about August 28, 2008, and the Clerk’s Record contains a

Waiver of Jurisdiction and Order of Transfer to Criminal District Court wherein it is

stated that the Appellant’s date of birth is August 29, 1991. In view of the State's

implied concessions and the documentation reflecting Appellant's birthdate, the record

adequately reflects that Appellant was younger than eighteen years of age at the time of

the offense and his case was transferred to the trial court pursuant to section 54.02 of

the Texas Family Code. Accordingly, Appellant’s supplemental issue is sustained.




                                          24
                                      CONCLUSION


      Pursuant to the Supreme Court's mandate in Miller, Appellant's sentence of life

without parole is hereby reformed to a sentence of life imprisonment. TEX. R. APP. P.

43.2. See Salinas v. State, 163 S.W.3d 734 (Tex.Crim.App. 2005); Herrin v. State, 125

S.W.3d 436, 444 (Tex.Crim.App. 2002); Collier v. State, 999 S.W.2d 779, 782

(Tex.Crim.App. 1999). As reformed, the trial court’s judgment is affirmed.



                                                Patrick A. Pirtle
                                                    Justice


Publish.




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