Affirmed; Opinion Filed January 7, 2020




                                              In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-18-01067-CR

                          BRANDON DEMON JORDAN, Appellant
                                        V.
                            THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 2
                                   Dallas County, Texas
                            Trial Court Cause No. F-1775751-I

                             MEMORANDUM OPINION
                           Before Justices Myers, Schenck, and Carlyle
                                   Opinion by Justice Schenck
       Brandon Demon Jordan appeals his conviction for capital murder. In three issues, appellant

contends the evidence is legally insufficient to support his conviction and the trial court violated

appellant’s right to confront his accuser and right to counsel. We affirm the judgment. Because

all issues are settled in the law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

                                          BACKGROUND

       Alejandro Hernandez was shot inside a motel room. He fled from the room and died of his

injury shortly thereafter. Appellant was arrested and charged with capital murder for killing

Hernandez in the course of robbing him. Appellant pleaded not guilty and claimed he acted in

self-defense. A jury found him guilty, and the trial court imposed a mandatory life sentence. TEX.

PENAL CODE ANN. § 12.31(a).
                                            DISCUSSION

         I.     Sufficiency of the Evidence

         In his first issue, appellant urges the evidence is legally insufficient to support his

conviction because there is no evidence he robbed or attempted to rob Hernandez and the evidence

established he acted in self-defense.

         We review the sufficiency of the evidence to support a conviction by viewing all of the

evidence in the light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319 (1979). This standard gives full play to the factfinder’s

responsibility to resolve testimonial conflicts, weigh the evidence, and draw reasonable inferences

from it. Id.; Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). The factfinder is not

required to believe defensive evidence even if it is uncontroverted. See Mattias v. State, 731

S.W.2d 936, 940 (Tex. Crim. App. 1987).

         Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the

credibility of the evidence and substitute our judgment for that of the factfinder’s. See Montgomery

v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). Instead, we determine whether the

necessary inferences are reasonable based upon the cumulative force of the evidence when viewed

in the light most favorable to the verdict. Murray, 457 S.W.3d at 448. We must presume that the

factfinder resolved any conflicting inferences in the verdict’s favor and defer to that resolution.

Id. at 448–49. The standard of review is the same for direct and circumstantial evidence cases;

circumstantial evidence is as probative as direct evidence in establishing guilt. Dobbs v. State, 434

S.W.3d 166, 170 (Tex. Crim. App. 2014); Acosta v. State, 429 S.W.3d 621, 625 (Tex. Crim. App.

2014).

         A person commits murder if he intentionally causes the death of an individual. See PENAL

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§ 19.02(b)(1). The offense is raised to capital murder if, among other things, the murder is

committed in the course of committing or attempting to commit a robbery. See id. §19.03(a)(2).

“In the course of committing” means conduct occurring in an attempt to commit, during the

commission of, or in the immediate flight after the attempt or commission of, the offense. McGee

v. State, 774 S.W.2d 229, 234 (Tex. Crim. App. 1989). The State must prove a nexus between the

murder and the theft—that the murder occurred to facilitate the taking of property. Ibanez v. State,

749 S.W.2d 804, 807 (Tex. Crim. App. 1986).

       The evidence presented at trial established the following. On May 21, 2017, Dallas Police

Officer Patrick Jobe responded to a report of a shooting at a motel. When he arrived at the scene,

Dallas Fire-Rescue directed him to the manager’s office. There, he found Hernandez’s body.

Officer Jobe then proceeded to room 608. There he discovered blood, a shell casing, and a bullet.

After viewing surveillance video, Officer Jobe determined that the individuals occupying room

412 were involved in the offense. Room 412 was registered in appellant’s name and occupied by

appellant and a woman named Brittany Pollard, a known prostitute. Rent for the room was $50

per day and due by 11:00 a.m. each day.

       While sitting in his squad car, Officer Jobe observed Pollard walking in the parking lot.

He detained her as she walked to room 412. Pollard was arrested on an outstanding warrant and,

while being transported to the police station, she attempted to assist the officers in locating

appellant. With the assistance of the U.S. Marshals Task Force, appellant was located and arrested

the next day.

       Surveillance video showed Hernandez and Pollard walking to room 608 at 7:42 a.m. and

appellant leaving room 412 and walking to room 608 at approximately 7:47 a.m. on May 21, 2017.

Appellant knocked on the door of room 608 and then entered the room. Shortly thereafter, at 7:50

a.m., three people are seen running out of the room. Hernandez ran down a stairway, through the

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parking lot to the manager’s office, where he collapsed and later died. Pollard ran in the same

direction as Hernandez, while appellant ran in the opposite direction. Appellant and Pollard

ultimately returned to room 412 where they remained for approximately ten minutes before leaving

in different directions. The murder weapon was recovered from room 412.

        Detective Jeff Loeb interviewed Pollard and later obtained search warrants for her and

appellant’s cell phones, as well as arrest warrants for appellant and Pollard for the offense of capital

murder. The cell phones contained text messages between Pollard and appellant on May 20, 2017,

in which appellant asks Pollard “Where you at” to which Pollard responded “Still walking

babe..I’m tired..The [explicative] is far..plus I still gotta get the RM $. I’m coming tho luv.”

Appellant responded “Ok be safe.” In addition, the cell phones contained a text message from

Pollard to appellant at approximately 7:49 a.m. on May 21, 2017 that said: “I’m in room 608 with

a Mexican. Come knock and rob his ass. Hurry.” The text message was sent just prior to the

offense. Detective Loeb believed Hernandez was killed during the course of appellant and Pollard

attempting to commit robbery.

        The medical examiner determined the cause of Hernandez’s death was a gunshot wound to

the chest and the manner of death was homicide. The medical examiner determined the gun was

fired at close range. Hernandez also had a graze gunshot wound on the left side of his trunk. The

medical examiner found a key ring with four keys, a metal clip, a bottle opener, a folding multi-

tool with box cutter, eleven quarters, three dimes, two nickels, and eleven pennies in Hernandez’s

pants pocket. The medical examiner testified that the multi-tool box cutter could be a deadly

weapon. Detective Loeb was not aware that Hernandez had the box cutter until the autopsy was

performed, which occurred after he interviewed appellant and Pollard. He retrieved the multi-tool

box cutter from the medical examiner. It was closed when he retrieved it.

        Appellant testified he had previously been convicted of aggravated robbery and burglary

                                                  –4–
of a habitation. He had been staying at the motel, in room 412, for several weeks at the time of

the murder. On May 21, 2017, appellant had $43 for the rent and planned to borrow $4 from a

friend. Pollard woke up around 7:00 a.m. that day and told appellant she was going to get money

for the rent. Appellant claimed he did not know how she was going to get the money. Appellant

admitted he received a text message from Pollard that morning but claimed he was half asleep

when he read it and only noticed that the text said she was in room 608 and that he should hurry.

Appellant got up and put a gun in his pocket. He claimed he grabbed the gun because, in the past,

Pollard had been injured by a client and he thought she might be in trouble. When appellant

entered room 608, Pollard was standing to the left, and Hernandez to the right. Appellant claimed

the gun was still in his pocket when he entered the room. Pollard closed the door and told appellant

that Hernandez would not pay her for her services, although she had money in her hand.1

          Appellant claimed Hernandez then placed his hand in his pocket and pulled out a knife,

after which appellant pulled the gun, cocked it, and told Hernandez to get back. Appellant stated

Hernandez was waving the knife around and rushed him, forcing him to fire his gun in self-defense.

Hernandez fell to the floor. Pollard tried to get the money from Hernandez, and appellant claimed

he told her to leave him alone and that they needed to get out of there. Appellant then stated

Hernandez was still swinging the knife and got up and charged at him so he fired again. They ran

from the room, and appellant did not know that Hernandez was injured so seriously that he would

die. Appellant claimed he did not intend to kill Hernandez, that his intention in shooting him was

merely to protect himself and Pollard. Appellant denied pulling out the gun to demand money

from Hernandez.

          The factfinder is not required to believe defensive evidence even if it is uncontroverted.

See Mattias, 731 S.W.2d at 940. The jury could have reasonably concluded that appellant and


   1
       Police recovered Hernandez’s wallet which had $2,276 in various denominations.

                                                                   –5–
Pollard intended to rob Hernandez in order to obtain rent money to pay their daily rent and in the

course of attempting to rob Hernandez, appellant shot and killed him. The text message from

Pollard to appellant instructing him to come to room 608 to rob the man she was with coupled with

appellant’s immediate act of walking to the room with a firearm is sufficient to establish appellant

was committing or attempting to commit robbery when Hernandez was murdered. The State is

not required to show an actual appropriation of property before a jury is entitled to conclude that

the murder took place “in the course of” the robbery. Castillo v. State, 221 S.W.3d 689, 693–94

(Tex. Crim. App. 2007) (concluding existence of money and jewelry left behind in victim’s

possession does not negate that murder was in course of robbery).

        As to appellant’s contention that he shot Hernandez in self-defense, the jury was free to

accept or reject his testimony in this regard. Obigbo v. State, 6 S.W.3d 299, 304 (Tex. App.—

Dallas 1999, no pet.). A determination of guilt by the factfinder implies a finding against the

defensive theory. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). While appellant

claimed the jury should have concluded that Hernandez pulled the “knife” before he pulled the

gun and fired, urging Hernandez would not have pulled a knife to defend against a gun, the jury

was free to reject that argument and to conclude, because the box cutter was still in Hernandez’s

pocket when the autopsy was performed, Hernandez did not display the box cutter during the

altercation.

        We overrule appellant’s first issue.

        II.    Cross-Examination of Detective Loeb

        In his second issue, appellant contends the trial court violated his right to cross-examine

State’s witness Detective Loeb when the court sustained the State’s hearsay objection to

appellant’s questioning Detective Loeb as to whether he told appellant and Pollard during their




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custodial interviews that no knife was recovered.2 In ruling on the State’s objection, the court

indicated that it was not saying appellant could not question Detective Loeb on what he believed

when he was questioning appellant and Pollard and appellant elicited that testimony from

Detective Loeb on cross-examination.

           The Sixth Amendment to the United States Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him

. . . .” U.S. CONST., amend. VI. This right is made applicable to the states by the Fourteenth

Amendment. See Pointer v. Texas, 380 U.S. 400, 403 (1965). Cross-examination provides the

defendant an opportunity to test the believability of a witness and the truth of his testimony. Davis

v. Alaska, 415 U.S. 308, 316 (1974). Although the constitutional provision guarantees criminal

defendants the right to confront and cross-examine witnesses, this right is not absolute. See Porter

v. State, 578 S.W.2d 742, 745 (Tex. Crim. App. 1979). The trial court maintains broad discretion

to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion of the

issues, endangering the witness, and the injection of cumulative or collateral evidence. Henley v.

State, 493 S.W.3d 77, 95 (Tex. Crim. App. 2016).

           We review a trial court’s decision to limit a defendant’s cross-examination under an abuse

of discretion standard. Matchett v. State, 941 S.W.2d 922, 940 (Tex. Crim. App. 1996), cert.

denied, 521 U.S. 2487 (1997). We will reverse the court’s ruling when the court acts arbitrarily

and unreasonably, without reference to guiding rules or principles of law, and appellant has been

harmed. Love v. State, 861 S.W.2d 899, 901–904 (Tex. Crim. App. 1993).

           We need not decide whether the trial court abused its discretion by sustaining the State’s



      2
         The trial court sustained the State’s objection to the following question “Now, it would be fair to say that during the course of your
conversations with Ms. Pollard and Mr. Jordan, sitting over here next to me, that you told them that nobody ever recovered-.” Defense counsel
made a proffer of his question and response as follows “And what I would like to ask the detective is, did you tell Ms. Pollard in her interview and
her initial interview that no knife was recovered, that the complaining witness did not have any kind of knife. I’m going to ask that question, did
you ask Brandon Jordan, did you tell him that no knife was recovered from the complaining witness, complaining witness didn’t have a knife,” to
which Detective Loeb responded “Yes. I remember stating those things.”

                                                                       –7–
objection to the question posited by appellant’s counsel because, even assuming the trial court did

so, the record does not show that any error affected appellant’s substantial rights. See TEX. R. APP.

P. 44.2(a). Appellant claims that in attempting to question Detective Loeb about his statements to

appellant and Pollard during their interviews, he sought to establish the detective did not have full

knowledge of all the evidence recovered at the scene and was not aware that the decedent was in

possession of a knife at the time of the alleged offense. But appellant was able to elicit essentially

the same information on further cross-examination of Detective Loeb by questioning him about

whether, at the time he questioned appellant and Pollard, he believed Hernandez possessed a knife.3

In addition, Detective Loeb admitted he discovered the existence of the box cutter only after the

autopsy was performed. Consequently, we conclude, if the trial court abused its discretion in

sustaining the State’s hearsay objection, any error was harmless. See Celis v. State, 369 S.W.3d

691, 697 (Tex. App.—Fort Worth 2012, pet. ref’d), abrogated in part on other grounds by

Meadows v. State, 455 S.W.3d 166 (Tex. Crim. App. 2015) (no harm under constitutional-error

standard of review by exclusion of witness’s DWI history when other evidence of witness’s DWI

history and drinking problem was presented to jury). We therefore overrule appellant’s second

issue.

          III.       Closing Argument

          In his third issue, appellant contends he was denied his constitutional right to counsel when

the trial court sustained the State’s objection to his closing argument.

          A trial court’s ruling on the State’s objection to a defendant’s jury argument is reviewed

for an abuse of discretion. Garcia v. State, 126 S.W.3d 921, 924 (Tex. Crim. App. 2004). Proper

jury argument typically falls within one of four general areas: (1) summation of the evidence; (2)



      3
        Appellant’s counsel asked: “At the time that you had questioned Brittany Pollard and at the time you had questioned Brandon Jordan you
did not believe at that time that the complaining witness, Mr. Hernandez, had used or even possessed a knife during the course of whatever took
place in the room.” Detective Loeb responded: “That is correct.”

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reasonable deduction from the evidence; (3) answer to argument of opposing counsel; and (4) plea

for law enforcement. Brown v. State, 270 S.W.3d 564, 570 (Tex. Crim. App. 2008).

       During closing arguments, the following exchange occurred:

       Mr. King (Defense Counsel): You know, they told you they had those recorded
       conversations. Ms. Smith [prosecutor] sat there and said, we’ve got these recorded
       conversations. You know how you do that? You play it back, you ask him a
       question: You just listened to that recorded conversation. Now do you recall saying
       this? Yes, I did; no, I don’t. He says no, I don’t, they get to introduce it into
       evidence. It didn’t come in.

       The video that they’ve got not coming in. When he gets arrested and Brittany
       Pollard gets arrested, they both go in there and they both tell the detective what
       happened in that room. And it’s not like Mr. Colston [prosecutor] said—”

       Mr. Colston: Well, Your Honor—

       Mr. King: about a bunch of money—

       Mr. Colston: I’m going to object to what’s on the recordings that that is facts not in
       evidence.

       The Court: Mr. King.

       Mr. King: Who has the—

       The Court: Mr. King?

       Mr. King: Yes, ma’am.

       The Court: Response?

       Mr. King: Your Honor, it’s a reasonable deduction from what he’s saying it’s
       response to our argument.

       The Court. All right, I’m going to sustain the objection.

The trial court then instructed the jury to disregard the statement.

       The improper denial of a jury argument may constitute a denial of the right to counsel, a

constitutional error, if the jury argument is one the defendant was entitled to make. Davis v. State,

329 S.W.3d 798, 825 (Tex. Crim. App. 2010) (citing McGee v. State, 774 S.W.2d 229, 239 (Tex.

Crim. App. 1989)). However, the trial court does not abuse its discretion in sustaining an objection
                                                –9–
to an argument that is not supported by the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.

Crim. App. 2000).

       Appellant contends that his counsel’s argument was designed to question the police

investigation and demonstrate appellant’s credibility. While the objected-to statement is not a

model of clarity, it appears appellant was attempting to reference the content of the videos of

Detective Loeb’s interviews of appellant and Pollard, items that were not admitted into evidence.

Accordingly, the trial court did not abuse its discretion in sustaining the State’s objection to the

statement. See id.

       Moreover, to the extent appellant wished to argue that the police investigation was

inadequate in some way, or that appellant had claimed self-defense since he was first arrested, he

did so. During closing argument, appellant’s counsel pointed out that Detective Loeb did not go

to the scene of the offense and instead relied on second-hand information. He further stated

Detective Loeb did not believe appellant’s claim of self-defense during his custodial interview

because, at that time, Detective Loeb was unaware that Hernandez possessed a knife.

Consequently, if the trial court abused its discretion in sustaining the State’s objection to counsel’s

statement, the error was harmless. See Johnson v. State, No. 05-96-00811-CR, 1998 WL 245872,

at *3 (Tex. App.—Dallas May 18, 1998, pet. ref’d) (not designated for publication) (citing James

v. State, 660 S.W.2d 146, 148 (Tex. App.—Amarillo 1983, no pet.); (Rische v. State, 746 S.W.2d

287, 291 (Tex. App.—Houston [1st Dist.]), remanded on other grounds, 755 S.W.2d 477 (Tex.

Crim. App. 1988)).

       We overrule appellant’s third issue.




                                                –10–
                                         CONCLUSION

       We affirm the trial court’s judgment.




                                                 /David J. Schenck/
                                                 DAVID J. SCHENCK
                                                 JUSTICE

DO NOT PUBLISH
TEX. R. APP. P. 47
181067F.U05




                                               –11–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 BRANDON DEMON JORDAN, Appellant                    On Appeal from the Criminal District Court
                                                    No. 2, Dallas County, Texas
 No. 05-18-01067-CR         V.                      Trial Court Cause No. F-1775751-I.
                                                    Opinion delivered by Justice Schenck.
 THE STATE OF TEXAS, Appellee                       Justices Myers and Carlyle participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 7th day of January, 2020.




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