                                NO. 12-11-00267-CR

                      IN THE COURT OF APPEALS

          TWELFTH COURT OF APPEALS DISTRICT

                                   TYLER, TEXAS

SHARIEFF DEAN,                                  §           APPEAL FROM THE 241ST
APPELLANT

V.                                              §           JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §           SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Appellant Sharieff Dean appeals his conviction for murder and presents six issues for our
consideration. We affirm.


                                          BACKGROUND
       Appellant was charged by indictment with the murder of Ronnie Kemp. The indictment
alleged that Appellant intentionally and knowingly caused Kemp‟s death by shooting him with a
firearm, and by striking Kemp with his hands and other objects, some of which were “unknown to
the grand jury.” The indictment alleged further that Appellant had used or exhibited a deadly
weapon (a firearm) during the commission of or immediate flight from the offense, and that he had
previously been convicted of two felony offenses. The State later filed a “Notice of Intent to Seek
Higher Punishment Based on Prior Convictions,” which referred to two prior felony convictions
for possession of a controlled substance.       The trial court signed an order allowing the
enhancements.
       Appellant pleaded “not guilty” to the offense of murder, “not true” to the first enhancement
allegation in the State‟s notice, and “true” to the second. The matter proceeded to a jury trial on
both guilt and punishment.
       The evidence at trial showed that on the night of July 5, 2010, Tyler police were dispatched
to Peach Park in response to a call from Johnnie Kemp. Johnnie had gone to the park to look for
her brother, Ronnie Kemp, after being informed by his wife, Rochelle, that she believed something
had happened to Kemp at the park. When Johnnie arrived at the park, she called her brother's
name several times, and called 911 when he did not answer. When the police arrived, they
searched the park and soon located Kemp's body. According to the autopsy report, he had been
shot six times and suffered multiple trauma injuries. Early in the investigation, the police
identified several suspects, including Appellant. Appellant is married to Kemp's sister, Debbie.
Their daughter, Amie Dean, is Kemp's niece. Amie was also identified as a suspect along with
several others.
       Appellant and Kemp were both drug dealers, but Appellant learned that Kemp had become
a confidential informant. This enraged Appellant, and he made no secret of his hatred for Kemp.
He described him as a "snitch" and told Debbie that Kemp "needed to be dealt with." After
Debbie realized Appellant was serious, she warned her brother on several occasions because she
wanted him to "be safe." Appellant related his hatred of Kemp to Lynetter Edwards, who was a
friend of both men and had previously purchased drugs from them. Edwards testified that
Appellant wanted Kemp dead because he was a "snitch." She described Appellant's hatred of
Kemp as "intense." Edwards also testified that Appellant told her he wanted to shoot Kemp in the
head and that he "couldn't believe" Kemp was still walking around.
       Amie had been staying with Kemp for a short time before the murder. On the evening
before the murder, Ronnie told her to leave, but he would not allow her to take all of her personal
items with her. She informed Appellant, who had an angry phone call with Kemp on the day of
the murder. Appellant then went to see someone that had previous problems with Kemp being a
confidential informant. The purpose of the visit was to talk to the person, later determined to be
Demetrius Kellum, about "putting a hit" on Kemp.
       That night, Kemp traveled to Peach Park for a meeting with Appellant. Appellant, Amie,
Kellum, and four other individuals arrived first and hid in the bushes along the path where Kemp
would pass. When he approached, Amie stepped out of the bushes and started talking to him.
Moments later, the others stepped out of the bushes, and all but one of them started beating him.
                                                2
Kemp was soon on the ground, and Appellant shot him six times, including once in the head.
       The jury found Appellant guilty of the offense of murder, found both enhancement
allegations “true,” and sentenced Appellant to imprisonment for life.      Appellant filed a motion
for new trial, which was overruled by operation of law. This appeal followed.


                                  SELECTION OF GRAND JURORS
       In his first issue, Appellant contends that the grand jury returning the indictment was
unconstitutionally impanelled.
Applicable Law
       Texas law provides for two methods of selecting grand jurors. The first method, called a
“key man” system, allows a district court judge to appoint three to five “persons to perform the
duties of jury commissioners.” TEX. CODE CRIM. PROC. ANN. art. 19.01(a) (West 2005). Those
commissioners select the grand jurors. See id. art. 19.06 (West Supp. 2012). In doing so, the
commissioners “shall, to the extent possible, select grand jurors who the commissioners determine
represent a broad cross-section of the population of the county, considering the factors of race, sex,
and age.” Id.
       The other method of selecting jurors is the randomized procedure used to select jurors for
civil cases. See id. art. 19.01(b) (West 2005).
Analysis
       Texas law requires that a challenge to the array of jurors must be made before the “grand
jury has been impaneled,” and “[i]n no other way shall objections to the qualifications and legality
of the grand jury be heard.” Id. art 19.27 (West 2005). The court of criminal appeals has held
that a motion to quash can be filed before trial commences if a “challenge on impanelment is not
possible.” Muniz v. State, 573 S.W.2d 792, 796 (Tex. Crim. App. 1978). As an example, the
court cited a case where the offense was committed after the grand jury was impaneled. Id.
(citing Ex parte Covin, 161 Tex. Crim. 320, 322, 277 S.W.2d 109, 111 (Tex. Crim. App. 1955)).
But the court was clear that “[i]f the defendant has an opportunity to challenge the array when it is
impaneled and does not do so, he may not challenge it at a later date.” Id.
       Here, Appellant filed a motion to quash the indictment, and the trial court considered the
motion at a pretrial hearing. However, Appellant did not argue at the hearing that he could not
                                                  3
have challenged the array when it was impaneled. See id. Because Appellant failed to show that
he could not have challenged the array when it was impaneled, his motion to quash does not
preserve this issue for our review. See TEX. CODE CRIM. PROC. ANN. art. 19.27; Muniz, 573
S.W.2d at 796; Caraway v. State, 911 S.W.2d 400, 401-02 (Tex. App.–Texarkana 1995, no pet.).
But Appellant would not prevail even if we were to consider his constitutional argument.
        The Supreme Court has reviewed the Texas “key man” system on several occasions. In
Smith v. Texas, 311 U.S. 128, 61 S. Ct. 164, 85 L. Ed. 84 (1940), the Court held that “the Texas
statutory scheme is not in itself unfair; it is capable of being carried out with no racial
discrimination whatsoever. But by reason of the wide discretion permissible in the various steps
of the plan, it is equally capable of being applied in such a manner as practically to proscribe any
group thought by the law‟s administrators to be undesirable.”1 Id., 311 U.S. at 130-31, 61 S. Ct. at
165. Although the Court found the system to be facially constitutional, and capable of being
carried out in a way that did not violate equal protection, the Court held that the system was
unconstitutional as applied in that case because a statistical analysis of the race of jurors who
actually served belied a race neutral application of the statute. Id., 311 U.S. at 131-32, 61 S. Ct. at
166.
        In Hill v. Texas, 316 U.S. 400, 62 S. Ct. 1159, 86 L. Ed. 1559 (1942), the Supreme Court
held that the Equal Protection Clause was violated by a grand jury selection scheme that excluded
African Americans from serving.                  In 1977, the Court again recognized the “facial
constitutionality of the key-man” system, but granted relief for an “as applied” equal protection
violation. See Castaneda v. Partida, 430 U.S. 482, 497, 500-01, 97 S. Ct. 1272, 1281, 1283, 51
L. Ed. 2d 498 (1977); see also Ovalle v. State, 13 S.W.3d 774, 778 (Tex. Crim. App. 2000) (citing
Partida, 430 U.S. at 497, 97 S. Ct. at 1281 (“The Supreme Court has held that the
commissioner-based system, while facially constitutional, is susceptible to abuse.”).
        Appellant does not make an “as applied” claim in this case and offered no evidence to show
that the grand jurors were selected in a discriminatory fashion. Instead, Appellant argues, despite
the Supreme Court‟s rulings to the contrary, that the “key man” system is facially unconstitutional.


        1
           The scheme as it existed at that time was similar to the current method of selecting grand jurors. But the
goal of a “cross-section” of the community required only that the jurors were selected from “different parts of the
county.” Smith, 311 U.S. at 131 n.5, 61 S. Ct. at 165 n.5.
                                                         4
This is so, he argues, because the statute directs grand jury commissioners to consider race in
selecting grand jurors.    See TEX. CODE CRIM. PROC. ANN. art. 19.06 (West Supp. 2012).
Appellant contends this is a racial classification that requires strict scrutiny as to whether the
policy serves a compelling governmental interest. See, e.g., Grutter v. Bollinger, 539 U.S. 306,
333, 123 S. Ct. 2325, 2342, 156 L. Ed. 2d 304 (2003) (“Even in the limited circumstance when
drawing racial distinctions is permissible to further a compelling state interest, government is still
„constrained in how it may pursue that end: the means chosen to accomplish the [government‟s]
asserted purpose must be specifically and narrowly framed to accomplish that purpose.”). He
also assumes, for purposes of argument, that ensuring a fair cross-section of the county population
is represented on the grand jury is a compelling governmental interest but argues that the key man
system is not narrowly tailored to meet that interest.
       No court has sustained a facial challenge to Article 19.06. However, it could be that
commissioners in a given case would impose some type of informal quota system. See Cassell v.
Texas, 339 U.S. 282, 286-87, 70 S. Ct. 629, 631-32, 94 L. Ed.839 (1950) (holding that a system
where not more than one African American person would be selected for each grand jury was
impermissible). Or it could be that they would take other measures to ensure that the statistical
anomalies present in the demographics of their own circle of acquaintances were not replicated in
the selection process. See id., 339 U.S. at 290, 70 S. Ct. at 633. But Appellant brings a facial
challenge to the statute, which is a claim that the statute is unconstitutional “on its face” and is a
claim that the statute, by its terms, always operates unconstitutionally. See United States v.
Salerno, 481 U.S. 739, 745, 107 S. Ct. 2005, 2100, 95 L. Ed. 2d 697 (1987) (“A facial challenge to
a legislative Act is, of course, the most difficult challenge to mount successfully, since the
challenger must establish that no set of circumstances exists under which the Act would be
valid.”); Gillenwaters v. State, 205 S.W.3d 534, 536 n.2 (Tex. Crim. App. 2006). But it is
certainly possible that a commissioner would employ a random system, or a relatively random
system–selecting, for example, the first three people on each page produced by the clerk–or simply
understand the statute to be an admonition not to discriminate in the selection of grand jurors.
There is no requirement that commissioners not use a random system if they determine that such a
system would discharge their duty to find grand jurors who represent a broad cross-section of the
community. In other words, the statute is capable of being implemented in a way that Appellant
                                                  5
agrees–random selection–would pass constitutional muster. Accordingly, even if Appellant had
preserved this complaint for our consideration, we could not conclude that Article 19.06 is facially
unconstitutional.
       We overrule Appellant‟s first issue.


                             REHABILITATION OF POTENTIAL JURORS
       In his second issue, Appellant contends the trial court reversibly erred in not striking
venirepersons 4 and 5 or, alternatively, by denying his request for additional peremptory strikes.
He argues that venirepersons 4 and 5 were subject to challenge for cause once they stated they
would convict Appellant if they thought he was “probably guilty.” Appellant argues further that
the trial court could not reasonably have believed that the law had not been fully or accurately
explained to the two venire members. Therefore, Appellant concludes, the trial court‟s additional
questioning was solely for the benefit of the State, improper, and harmful.
Standard of Review and Applicable Law
       The conduct of the voir dire examination rests within the sound discretion of the trial court.
Dowden v. State, 758 S.W.2d 264, 274 (Tex. Crim. App. 1988) (en banc). When reviewing a trial
court‟s decision to grant or deny a challenge for cause, we look at the entire record to determine if
there is sufficient evidence to support the court‟s determination. Gonzales v. State, 353 S.W.3d
826, 831 (Tex. Crim. App. 2011). We review the ruling with considerable deference, particularly
when the prospective juror‟s responses are vacillating, unclear, or contradictory. Saldano v.
State, 232 S.W.3d 77, 91 (Tex. Crim. App. 2007); Threadgill v. State, 146 S.W.3d 654, 667 (Tex.
Crim. App. 2004). We do so because the trial court is in the best position to evaluate a
prospective juror‟s demeanor, tone of voice, and responses. Smith v. State, 297 S.W.3d 260, 268
(Tex. Crim. App. 2009); Feldman v. State, 71 S.W.3d 738, 744 (Tex. Crim. App. 2002). We
reverse the trial court‟s ruling only if the record shows a clear abuse of discretion. Hernandez v.
State, 390 S.W.3d 310, 317 (Tex. Crim. App. 2012).
       The defense may challenge a prospective juror for cause if the juror has “a bias or prejudice
in favor of or against the defendant,” or “a bias or prejudice against any of the law applicable to the
case upon which the defense is entitled to rely, either as a defense to some phase of the offense for
which the defendant is being prosecuted or as a mitigation thereof or of the punishment therefor.”
                                                  6
TEX. CODE CRIM. PROC. ANN. art. 35.16(a)(9), (c)(2) (West 2006). Thus, the defense may
challenge for cause a potential juror who is unable to require the state to prove each element of the
offense beyond a reasonable doubt. Wheatfall v. State, 882 S.W.2d 829, 833 (Tex. Crim. App.
1994) (en banc). The test of whether the prospective juror should or should not be dismissed is
whether the bias or prejudice would impair his ability to carry out his oath and instructions in
accordance with the law. Gardner v. State, 306 S.W.3d 274, 295 (Tex. Crim. App. 2009).
Before a prospective juror may be excused for cause on this basis, the law must be explained to
him, and he must be asked whether he can follow that law, regardless of his personal views. Id.
         Once a potential juror expressly admits his bias against a phase of law upon which the
defense is entitled to rely, a sufficient foundation has been laid for a challenge for cause.
Cardenas v. State, 325 S.W.3d 179, 184-85 (Tex. Crim. App. 2010). The opposing party or the
trial court may then examine the potential juror further to ensure that he fully understands and
appreciates the position he is taking. Id. at 185. But unless there is further clarification or the
potential juror vacillates, the trial court must grant a challenge for cause if the potential juror
expresses that he cannot hold the state to its burden of proof. See Wheatfall, 882 S.W.2d at
833-35.
Voir Dire
         Before the voir dire began, the trial court gave the prospective jurors some general
instructions. Concerning “reasonable doubt,” the court instructed the venire as follows:


         [Y]ou‟ve heard me use that term “beyond a reasonable doubt[,]” which is a term I‟m sure you‟re all
         familiar with. That term “beyond a reasonable doubt,” we‟ve heard it all our lives. The term
         “beyond a reasonable doubt” does not really have a definition now in Texas. It‟s left to each
         individual juror, okay, to determine whether or not they are convinced beyond a reasonable doubt
         that the State has proven the defendant guilty and proven each allegation of the indictment beyond a
         reasonable doubt. The State does not have to prove the defendant guilty beyond all possible doubt,
         but the State must eliminate any reasonable doubt as to the defendant‟s guilt before the jury can find
         the defendant guilty.2


The prosecutor explained to the venire that beyond a reasonable doubt is “not beyond a shadow of
a doubt” and “not beyond all doubt.” He also told them that “[y]ou can actually convict someone


         2
            The court of criminal appeals has held that “the better practice is to give no definition of reasonable doubt at
all to the jury.” Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000).
                                                             7
of a criminal offense and have a doubt,” but “[w]hat you can‟t have is a reasonable doubt.” The
prosecutor reminded the venire that “what beyond [a] reasonable doubt is, it‟s really up to you, it
really is. Y‟all are the individuals that dictate that.”
       In his discussion of reasonable doubt, defense counsel asked one of the venire members
what reasonable doubt meant to her. Before she answered, counsel reiterated that


       Judge isn‟t going to give you any instructions – he‟s going to give you a lot of instructions, but he
       isn‟t going to tell you what a reasonable doubt is. But you get to have your own definition of
       reasonable doubt, and each of you, as you go back in that jury room, say this is what I believe
       reasonable doubt is.



After hearing from two other venire members, counsel then moved on to discuss “escalating levels
of proof” and questioned individual venire members about the level of proof they would need in
certain circumstances. During his voir dire, defense counsel mentioned the “slight tilt” that
satisfies the burden in a civil case. At that point, the following exchange occurred between
defense counsel and venirepersons 4 and 5:


       COUNSEL:          Juror Number 4, if there‟s that slight tilt in the scales of justice, 51 percent, I think they
                         proved he‟s probably guilty. What‟s your burden?

       NUMBER 4:         Has to be beyond a reasonable doubt.

       COUNSEL:          That‟s right. So you‟d have to vote not guilty; isn‟t that right?

       NUMBER 4:         It depends.

       COUNSEL:          Well, if you believe that they proved he was probably guilty, would you still convict
                         him?

       NUMBER 4:         Yes, sir.

       COUNSEL:          Okay. Thank you. Everybody hear that? Does anyone else here feel like
                         . . . Number 4? . . . . [Number 5] [d]o you agree with that?

       NUMBER 5:         Yes.

Based on this exchange, venirepersons 4 and 5 were included in the individual voir dire that was
conducted later by the trial court. Number 4 was questioned on the court‟s own motion and
number 5 at the request of defense counsel.

                                                          8
       During the individual voir dire, the trial court sought assurance from Number 4 that he
could require the State to prove each element of the offense charged in the indictment beyond a
reasonable doubt. In response to the court‟s questions, Number 4 stated that he understood
beyond a reasonable doubt is a higher burden of proof and that “probably guilty” is insufficient.
Number 4 confirmed that he would be able to follow the court‟s instructions and find the defendant
guilty only if he was convinced beyond a reasonable doubt, which he understood to be a higher
standard than “probably.”
       Defense counsel then questioned venireperson number 5. When counsel asked Number 5
whether he would convict the defendant if he “thought he was 51 percent guilty,” he answered,
“Yeah, probably.” The court then asked Number 5 the same question, and he responded, “Yes, I
believe that is correct.” The court questioned Number 5 further to determine whether he could
follow the instructions on burden of proof. When the court again explained that beyond a
reasonable doubt does not have a definition, Number 5 asked whether that could be “as low as 51
percent.” The court responded that there was no quantitative standard, but also informed Number
5 that “probably is not the standard.” After further questioning and explanation by the trial court,
Number 5 stated that he believed he could follow the instruction and hold the State to its burden of
proof. The trial court then denied Appellant‟s challenges for cause.
The Trial Court’s Ruling
       Because venirepersons 4 and 5 were subject to a challenge for cause based on their answers
during voir dire, the trial court had the discretion to examine each of them further. See Cardenas,
325 S.W.3d at 84-85. During the court‟s questioning, it became evident that both understood the
State‟s burden of proof was beyond a reasonable doubt. They were less clear about the degree of
certainty required to meet that level of proof, particularly when the required certainty was
expressed as a percentage.       After the trial court‟s explanations and questioning, both
venirepersons agreed that 51% was not sufficient and confirmed that they could follow the court‟s
instructions.
       Based upon our review of the entire record and giving due deference to the trial court, we
hold there is sufficient evidence to support the court‟s rulings. See Gonzales, 353 S.W.3d at 831.
Therefore, the record does not show a clear abuse of discretion. See Hernandez, 390 S.W.3d at
317. We overrule Appellant‟s second issue.
                                                 9
                                TESTIMONY OF VICTIM’S WIDOW
       In his third issue, Appellant contends that the trial court erred by allowing impermissible
hearsay testimony from the victim‟s widow, Rochelle Kemp.
Standard of Review
       We review the trial court‟s rulings on hearsay objections for an abuse of discretion.
Saavedra v. State, 297 S.W.3d 342, 349 (Tex. Crim. App. 2009). A trial court abuses its
discretion when a decision is so clearly wrong as to lie outside the zone within which reasonable
persons might disagree. See Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)
(op. on reh‟g). The trial court‟s ruling on the admissibility of evidence will be upheld if it is
reasonably supported by the record and is correct under any theory of law applicable to the case.
Ramos v. State, 245 S.W.3d 410, 418 (Tex. Crim. App. 2008).
Applicable Law
        “Hearsay” is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted. TEX. R. EVID. 801(d).
Hearsay is generally inadmissible unless it falls within a recognized exception to the hearsay rule.
Apolinar v. State, 155 S.W.3d 184, 186 (Tex. Crim. App. 2005); see also TEX. R. EVID. 802. One
such exception is the present sense impression. TEX. R. EVID. 803(1).
       A “present sense impression” is a statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition, or immediately thereafter. Id.
The rule is predicated on the notion that the utterance is a reflex product of immediate sensual
impressions, unaided by retrospective mental processes. Fischer v. State, 252 S.W.3d 375, 380
(Tex. Crim. App. 2008). Thus, the rationale for the exception stems from the statement‟s
contemporaneity, not its spontaneity. Rabbani v. State, 847 S.W.2d 555, 560 (Tex. Crim. App.
1992) (en banc).
       If the declarant has had time to reflect upon the event and the conditions he observed, the
statement and the event it describes are no longer contemporaneous. Fischer, 252 S.W.3d at 381.
Consequently, the present sense impression exception does not apply.             Id.   There is no
requirement that the statement be made to another (the witness who reports it) who would have an
equal opportunity to observe the event and check a misstatement. Rabbani, 847 S.W.2d at 560
n.9 (observing that Rule 803(1) contains no requirement that witness have opportunity to check
                                                10
veracity of declarant‟s statement; disavowing contrary holding in Myre v. State, 545 S.W.2d 820
(Tex. Crim. App. 1977)).
       A person who is observing or experiencing something may explain or describe it to
someone else over the telephone. Russo v. State, 228 S.W.3d 779, 809 (Tex. App.–Austin 2007,
pet. ref‟d). What the listener hears is a present sense impression. Id.
Analysis
       Rochelle Kemp testified that she had two telephone conversations with her husband shortly
before he died. She described the second conversation as follows:


       I heard him say, “Sharieff, up there,” and Sharieff was saying something, but I didn‟t – couldn‟t
       understand what he was saying.

       And then Ronnie said it again, “No, Sharieff, up there.” And all of a sudden, I heard something pop
       and like something was moving, and he called Sharieff‟s name. And then he said, “I‟ve been shot.”


At trial, Appellant objected to this testimony based on hearsay and confrontation. The trial court
overruled the objections and admitted the testimony as a present sense impression. On appeal,
Appellant urges here that these statements did not constitute a present sense impression.
       Appellant points out that “case law has evolved to further explain that even testimony that
may meet the definition of a present sense impression is nonetheless inadmissible as hearsay
where the statements made „might be intended by the declarant to be made with an eye toward
future litigation or evidentiary use.‟” See Fischer, 252 S.W.3d at 384.                   And he asserts that
Kemp‟s statements to his wife in their second telephone conversation were of this character.
       Fischer provides a detailed examination of the present sense impression exception to the
hearsay rule. Id. at 378-87. In its discussion, the court describes statements falling within this
exception as “„street corner‟ utterances made by ordinary people before any thoughts of litigation
have crystallized.” Id. at 379. The court also noted that once litigation becomes the focus, the
declarant‟s observations, narrations, and conclusions become reflective, calculated, and
inadmissible. Id. at 385.
       In Fischer, the court noted that on the scene observations and narratives of a police officer
investigating a suspected offense are “fraught with the thought of a future prosecution.” Id. at
384. For that reason, the court concluded that a trooper‟s statements on a videotaped narrative he
                                                       11
prepared while conducting a roadside investigation of a suspected DWI offense constituted “a
calculated narrative in an adversarial, investigative setting.”      Id. at 386.    Therefore, the
statements were inadmissible as present sense impressions under Rule 803(1).
       Appellant insists that Ronnie Kemp also had “an eye toward future litigation or evidentiary
use.” Specifically, he notes that a police officer testified that Kemp‟s sister “told Dispatch she‟d
received a call from Ronnie advising he was going to the park, and if anything happened to him
that‟s where he‟d be.” In our view, this statement by the victim reflects only that he wanted his
family to be able to find him if something happened to him. But even if this statement could be
construed as showing Kemp contemplated future evidentiary use of the statement, there is nothing
to indicate any such contemplation during his second telephone conversation with his wife. His
statements are nonreflective and describe the event he was perceiving. Therefore, the statements
are present sense impressions, and the trial court did not abuse its discretion in admitting them.
We overrule Appellant‟s third issue.


                                       SCIENTIFIC EVIDENCE
       In his fourth issue, Appellant contends that the trial court erred in admitting the testimony
of two police officers regarding the BLUESTAR presumptive test for blood performed on
Appellant‟s shoes and vehicle.
Expert Testimony
       Texas Rule of Evidence 702 requires scientific evidence to be reliable and relevant. Kelly
v. State, 824 S.W.2d 568, 572 (Tex. Crim. App. 1992). For an expert‟s testimony to be relevant,
the testimony must assist the trier of fact in understanding the evidence or determining a fact in
issue. Jordan v. State, 928 S.W.2d 550, 555 (Tex. Crim. App. 1996); see also TEX. R. EVID.
702. Expert testimony that does not relate to a fact in issue is not helpful. Jordan, 928 S.W.2d at
555. If the proponent demonstrates that the scientific evidence is both relevant and reliable, the
trial court should admit it unless it determines that the probative value of the evidence is
outweighed by some factor identified in Texas Rule of Evidence 403. Kelly, 824 S.W.2d at 573.
The Evidence
       Tyler Police Department investigators performed a presumptive test for blood on a pair of
leather shoes belonging to Appellant and on Appellant‟s truck. The State sought to introduce the
                                                12
results of this testing, and Appellant requested a hearing to determine whether the State could
make the “scientific predicate” necessary for admission of the evidence.
       At the hearing, Investigator Donald Malmstrom explained that he conducted the
presumptive test for blood on the shoes using BLUESTAR reagent and that he mixed and applied
the product according to the directions he was provided. He explained further that BLUESTAR
creates a blue “photoluminescence” when it is applied to an area that contains blood. He
confirmed that he was not saying there was definitely blood on the shoes–only that there was a
“presumptive positive test,” meaning that the BLUESTAR reacted in certain areas of the shoes.
He then sent the shoes, along with the time lapse photographs taken during the testing process, to
Orchid Cellmark for confirmation testing. On cross examination, Inspector Malmstrom testified
that he had no chemistry background and could not explain the underlying scientific theory about
how the substance in the BLUESTAR tablets reacts with blood.
       At the conclusion of the hearing, Appellant objected that the State did not establish the
proper predicate for admission of the evidence. Alternatively, he cited Texas Rules of Evidence
401, 402, and 403, objecting that admission of the testimony would be more prejudicial than
probative and confuse the issues. The trial court overruled Appellant‟s objections and allowed
the testimony. Inspector Malmstrom related to the jury that the BLUESTAR reagent reacted in
several areas on the shoes. His supervisor, Sergeant Jeffrey Rackliff, testified that there was no
reaction when BLUESTAR was applied to Appellant‟s truck. He also described BLUESTAR as
a presumptive test.
       Both officers explained that a presumptive test shows an officer that something may be
blood and that further testing is necessary.
Analysis
       Appellant argues that the State failed to establish that BLUESTAR testing is scientifically
reliable or that the officers who performed the testing were qualified to testify about it. As a
result, he urges, the trial court erred in permitting the officers‟ testimony. Appellant also
maintains that the error was harmful because the evidence “carr[ied] the imprimatur of science” in
a case that was largely circumstantial and the State was then able to refer to the shoes in closing
argument. In other words, he argues that the admission of the evidence left a false impression
with the jury about the scientific validity of the BLUESTAR test. The State counters that even if
                                                13
the evidence was erroneously admitted, Appellant was not harmed because the Orchid Cellmark
test results confirmed there was blood on the shoes. We agree.
       Huma Nasir, a forensic DNA analyst with Orchid Cellmark, performed the confirmation
testing on Appellant‟s shoes. Nasir testified, as did Inspector Malmstrom and Sergeant Rackliff,
that BLUESTAR is merely a presumptive test for blood. She described the methodology she used
in her testing and confirmed that she tested the shoes for blood in the areas in which the time lapse
photographs showed the BLUESTAR reagent had reacted. She also testified that some of those
areas tested positive for blood and some did not. But according to her testimony, she found blood
on both shoes. No objections were made to this testimony.
       The Orchid Cellmark test results confirmed the presumptive test results–that there was
blood on both of Appellant‟s shoes. Therefore, assuming that the admission of the BLUESTAR
results was error, and assuming further that the error created the false impression Appellant
suspects, the error was harmless. Cf. Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998) (error harmless when other such evidence is received later without objection). Appellant‟s
fourth issue is overruled.


                                 ADMISSIBILITY OF TEXT MESSAGES
       In his fifth issue, Appellant complains that the trial court erred in admitting, over his
hearsay and confrontation objections, text messages allegedly between Amie Dean and Jaquan
Dawson.
The Text Messages
       The State obtained the July 5, 2010 cell phone records of various individuals, including
Amie Dean and Jaquan Dawson. At trial, the State called the custodian of records for Metro PCS,
who testified about what those records showed. Through that witness, the State sought to
introduce the following text messages purportedly sent between Amie Dean and Jaquan Dawson:


       [Amie] Aye I kno the n***a whos the hitman fa goldie and he on sum mo n***as heads n tyler my
       dad kno em that‟s how I seen the n***a but look its all bad and sum

       [Jaquan] O well ok so do u go to work today



                                                     14
       [Amie] that had said to b snitchn keep it to urself but im lettn u kno without lettn u kno kelly
       [Jaquan‟s father] name came up3

       [Amie] Lata but its sum crazy shyt but he stright killa he jus got out 4m doin 20 yrs fa killen a n***a he was
       sayin he was gne make an example of a few n****s

       [Jaquan] Bae id give a f*k about him datz not wat I wanna talk about do u wanna b wit da n***a or sum

       [Amie] I was tellin u cuz the man brought up ya dad name and naw



Appellant objected on various grounds including hearsay and confrontation. After extended
arguments, the trial court overruled Appellant‟s objections and admitted the text messages.
Hearsay
       The State contends that the text messages were admissible as statements by a
co-conspirator in furtherance of the conspiracy and as statements against penal interest.
However, we need not decide whether the text messages are inadmissible hearsay because even if
they are, any error in admitting them is harmless.
       The improper admission of hearsay is nonconstitutional error. See Coble v. State, 330
S.W.3d 253, 280 (Tex. Crim. App. 2010). Therefore, the error will be considered harmless, if
after examining the record as a whole, we are reasonably assured the error did not affect the
appellant‟s substantial rights. TEX. R. APP. P. 442.(b); Coble, 330 S.W.3d at 280. An error is
considered to affect an appellant‟s substantial rights when the error had a substantial and injurious
effect or influence on the jury‟s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App.
2010). Overruling an objection to evidence will not result in reversal when other such evidence
was received without objection, either before or after the complained-of ruling. Leday, 983
S.W.2d at 718.
       In her text messages, Amie Dean referred to a “hitman” for Kemp and stated that she had
met him because her dad knows him. But Tajshay Penny also testified about the “hit.” Penny
testified that on the day of the murder, she traveled with Appellant and Amie to a Tyler location.
As they drove, Appellant said he was going to talk to a “guy that had been having previous
problems with Ronnie about him being a confidential informant.” Appellant also said he was
going to talk to the man about “putting a hit out on Ronnie.” This testimony was admitted without


       3
           The victim was also known as “Goldie.”
                                                        15
objection. Consequently, even if the trial court‟s admission of the text messages was error, we
cannot conclude that Appellant was harmed. See id.
Right to Confrontation
        To protect a defendant‟s Sixth Amendment right to confront witnesses, the Supreme Court
in Crawford v. Washington restricted the admissibility of testimonial hearsay statements. 541
U.S. 36, 68, 124 S. Ct. 1354, 1374, 158 L. Ed. 2d 177 (2004). Under Crawford, testimonial
hearsay statements of a person who does not appear at a defendant‟s trial are inadmissible unless
that person was unavailable to testify and the defendant had a prior opportunity for cross
examination. Whether a particular statement is testimonial is a question of law. De La Paz v.
State, 273 S.W.3d 671, 680 (Tex. Crim. App. 2008). Accordingly, we review Crawford issues de
novo. Wall v. State, 184 S.W.3d 730, 742 (Tex. Crim. App. 2006). However, we defer to the
trial court‟s resolution of credibility issues and historical fact.       Id.
        In determining whether a statement is “testimonial,” we use the standard of the objectively
reasonable declarant standing in the shoes of the actual declarant.                    Id. at 742-43.       The
determination does not depend on the declarant‟s expectations. See Michigan v. Bryant, 131 S.
Ct. 1143, 1156, 179 L. Ed. 2d 93 (2011) (confirming that objective inquiry is required). A
statement is more likely to be testimonial if the person who heard, recorded, and produced the
statement at trial is a government officer. Crawford, 541 U.S. at 51, 124 S. Ct. at 1364. Paul v.
State, No. 12-10-00280-CR, 2012 WL 3101743, at *5 (Tex. App.–Tyler July 31, 2012, pet. ref‟d)
(op.) (not yet released for publication).            Casual remarks to acquaintances are generally
nontestimonial. Crawford, 541 U.S. at 51, 124 S. Ct. at 1364.
        Here, the quoted portion of Amie‟s text messages to Jaquan related to the anticipated “hit”
on Ronnie Kemp. In these messages, Amie stated that she had met the “hitman” because her dad
knows him. She also provided information about the man‟s most recent criminal history and his
plan to make an example of some people he believed were “snitchin,” possibly including Jaquan‟s
father. But the text messages were casual statements to a friend. This is not a situation that
“would lead an objective witness reasonably to believe that the statement[s] would be available”
for later judicial proceedings.4 See Crawford, 541 U.S. at 52, 124 S. Ct. at 1364; Woods v. State,

        4
          One author has observed that electronic Communications–texts, status updates, tweets, and the like–will
rarely be made with a primary purpose of creating an out of court substitute for trial testimony. Jeffrey Bellin,
                                                       16
152 S.W.3d 105, 113-14 (Tex. Crim. App. 2004) (en banc). Therefore, the statements in the text
messages were nontestimonial, and the Crawford rule pertaining to testimonial hearsay is not
applicable here. Consequently, the trial court did not err in overruling Appellant‟s confrontation
objection.
        Because any error in admitting the text messages was harmless, and because Crawford is
inapplicable, we overrule Appellant‟s fifth issue.


                                     THE INVESTIGATION EXCEPTION
        In his sixth issue, Appellant contends that on a number of occasions, the State was allowed
to present inadmissible hearsay under the “investigation” exception. This, Appellant claims,
resulted in the admission of inadmissible evidence and the denial of Appellant‟s right to confront
the purported declarants.
        Police have been allowed to testify to information that might otherwise be considered
hearsay in order to explain the course of an investigation or their presence at a crime scene. West
v. State, No. 05-02-01653, 2003 WL 22976705, at *7 (Tex. App.–Dallas Dec. 19, 2003, pet. ref‟d)
(op., not designated for publication); Thornton v. State, 994 S.W.2d 845, 854 (Tex. App.–Fort
Worth 1999, pet. ref‟d). Usually it will be relevant for a testifying officer to relate how he
happened upon the scene of a crime or accident. Schaffer v. State, 777 S.W.2d 111, 114 (Tex.
Crim. App. 1989). Therefore, it is permissible for the officer to testify that he was acting in
response to “information received.” Id. However, the officer should not be permitted to relate
historical aspects of the case, replete with hearsay statements in the form of complaints and reports
on grounds that he was entitled to tell the jury the information upon which he acted. Id. at 114-15.
The critical question is whether there is an inescapable conclusion that a piece of evidence is being
offered to prove statements made outside the courtroom. Id. at 114.
        Appellant identifies five witnesses whose testimony he claims includes impermissible
hearsay admitted under the “investigation” exception. Appellant concedes, however, that “many
of the challenged statements” were admitted when the declarant actually testified and therefore,
harm cannot be shown on that basis. See King v. State, 953 S.W.2d 266, 273 (Tex. Crim. App.


Applying Crawford’s Confrontation Right in a Digital Age, 45 TEX. TECH. L. REV. 33, 41 (Fall 2012) (citing State v.
Damper, 225 P.2d 1148, 1151 (Ariz. Ct. App. 2010) and Hope v. State, 903 N. E. 2d 977, 989 (Ind. Ct. App. 2009)).
                                                        17
1997). Yet, he contends that to protect the integrity of the trial process and prevent the State‟s
repetition of the error with impunity, we should find harm under one of the two rules guiding our
harm analysis. See TEX. R. APP. P. 44.2(a) (court of appeals must reverse judgment of conviction
or punishment unless court determines beyond a reasonable doubt that error did not contribute to
conviction or punishment); TEX. R. APP. 44.2(b) (court must disregard nonconstitutional error not
affecting substantial rights).
        In substance, Appellant requests that we determine harm by applying the Harris factors.
See Harris v. State, 790 S.W.2d 568, 587-88 (Tex. Crim. App. 1989). In Harris, the court of
criminal appeals stated that when addressing harm from constitutional error, an appellate court
should be concerned with the integrity of the process leading to the conviction and not the result.
Id. at 587, 588. Therefore, the court should examine the source of the error, the nature of the
error, whether or to what extent it was emphasized by the State, and its probable collateral
implications. Id. The court should also consider how much weight a juror would probably place
upon the error, and whether declaring the error harmless would encourage the State to repeat it
with impunity. Id. In short, the reviewing court was required to focus not on the weight of the
other evidence of guilt, but rather on whether the error at issue might possibly have prejudiced the
jurors‟ decision making. Id.
        The court has recently held that the Harris factors are not helpful in Rule 44.2(b) analyses,
and particularly the factor of “whether declaring the error harmless would encourage the State to
repeat it with impunity.” Mason v. State, 322 S.W.3d 251, 257 n.10 (Tex. Crim. App. 2010).
The court further described the Harris factors as “unnecessarily limiting when we are to consider
the record as a whole.” Id. Even more recently, the court disavowed all but four of the original
Harris factors when determining whether a constitutional error was harmful–the nature of the
error, whether it was emphasized by the State, the probable implications of the error, and the
weight the jury would like have assigned to it in the course of its deliberations. Snowden v. State,
353 S.W.3d 815, 822 (Tex. Crim. App. 2011). Whether a declaration of harmlessness would
encourage the State to repeat the error with impunity did not survive. See id. at 821. Moreover,
the court held that Harris erroneously included within its ambit any concern for the integrity of
future trial. Id. Accordingly, we decline to consider how a determination of harmlessness in this
case will affect the State‟s conduct in future cases.
                                                 18
         Based upon our review of the record, we agree with Appellant that he cannot show harm
under either Rule 44.2(a) or 44.2(b). We overrule Appellant‟s sixth issue.




                                                    DISPOSITION
         Having overruled Appellant‟s six issues, we affirm the judgment of the trial court.

                                                                SAM GRIFFITH
                                                                   Justice

Opinion delivered August 29, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




                                                          19
                                       COURT OF APPEALS
                  TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
                                              JUDGMENT


                                           AUGUST 29, 2013


                                         NO. 12-11-00267-CR


                                        SHARIEFF DEAN,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                            Appeal from the 241st Judicial District Court
                         of Smith County, Texas. (Tr.Ct.No. 241-1774-10)


                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                     20
