Affirmed and Memorandum Opinion filed May 28, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-14-00067-CR

                         JUSTIN MCGEE, Appellant
                                       V.

                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 262nd District Court
                           Harris County, Texas
                       Trial Court Cause No. 1387993


             MEMORANDUM OPINION
      In this capital-murder case we address whether the trial court abused its
discretion in admitting into evidence testimony regarding a previous drug
transaction between the complainant and the defendant. We also assess the harm,
if any, resulting from the trial court’s refusal to charge the jury on accomplice-
witness testimony. We affirm.
            I.           FACTUAL AND PROCEDURAL BACKGROUND

      Cameron Dansby, the complainant, and Dominick Sean McDonald sold
marijuana to appellant Justin McGee and appellant’s associate, Anthony Avalos.
The complainant met appellant and Avalos in the parking lot of the Chesterfield
apartment complex, where McDonald kept an apartment.           The complainant
delivered the drugs to appellant and Avalos in July 2011 (hereinafter “the July
transaction.”). Upon delivery of the drugs, appellant and Avalos claimed they
already had paid another associate of the complainant and McDonald. Believing
appellant and Avalos, the complainant returned to McDonald’s apartment without
payment for the drugs.   After McDonald and the complainant realized appellant
and Avalos had not paid anyone, the complainant and McDonald chased appellant
and Avalos. The complainant and McDonald followed appellant and Avalos to
Avalos’s home. Once there, the complainant and McDonald drew weapons and
confronted appellant and Avalos. Appellant and Avalos paid for the drugs and the
complainant and McDonald left.

      A few weeks later, appellant, Avalos, and associates Arthur McSwain,
Marquis Cook, Bryant Carter, and Richard Bartholomew (hereinafter “the
Associates”) returned to the Chesterfield apartment complex and kidnapped the
complainant as he was walking toward McDonald’s apartment. Appellant, Avalos,
and the Associates drove the complainant to a remote location at the back of
another apartment complex, where appellant, Avalos, and McSwain shot the
complainant dead.

      A resident at the Chesterfield complex heard the kidnapping in progress and
went to investigate. The resident heard voices saying “get him, grab him.” The
resident walked outside and saw the complainant laying face-down on the ground
while three or four other individuals, who were pointing guns at the complainant,

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kicked the complainant and harassed him as they forced him toward the parking
lot. Appellant put a gun into the resident’s stomach and asked the resident if the
resident wanted to live. The resident replied that he did and appellant told the
resident to return to his home.

      The same night, the resident saw some of the Associates return to the
Chesterfield apartment complex. A female (Brittany Watts) was with them. The
female walked up the stairs to McDonald’s apartment, spoke briefly with someone
at the door, and then ran back down the stairs. As she ran, the individuals fled the
premises. Police found the complainant’s body the following morning.

      The resident informed police about what he had seen. The resident was able
to give the police descriptions of the individuals involved in the kidnapping and
descriptions of suspicious vehicles he saw at the apartment complex at the time of
the kidnapping. McDonald told police about the July transaction with appellant
and Avalos and directed the police to Avalos’s residence, where the police
identified cars matching descriptions given by McDonald and the resident.

      Appellant was charged with the offense of capital murder. At appellant’s
jury trial, the resident identified appellant as the man who had pressed a gun into
his stomach. A friend of appellant’s, Francisco Segovia, testified that he gave
appellant a ride to Avalos’s home and then to the Chesterfield apartment complex
on the night the complainant was murdered. Segovia testified that he waited
outside the complex after dropping off appellant and then followed Avalos’s car
when he saw Avalos leave. Segovia stated that he followed Avalos’s vehicle to
another apartment complex and, again, waited outside. This time, Segovia heard
gunshots, saw Avalos’s car leave, and then followed the car back to Avalos’s
home. At Avalos’s home, Segovia heard Avalos complain that the others had
forced the complainant into Avalos’s car, which Avalos said was a mistake.

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Evidence is relevant if it tends to make the existence of any consequential fact
more or less probable than it is without the evidence. Tex. R. Evid. 401; Moralez
v. State, 450 S.W.3d 553, 569 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
Extraneous-offense evidence is relevant if it logically makes elemental facts, such
as intent or knowledge more or less probable, or if it makes the defense’s evidence
attempting to undermine these elemental facts more or less probable. Montgomery
v. State, 810 S.W.2d 372, 387–88 (Tex. Crim. App. 1991) (op. on reh’g).
Appellant argues the July transaction is irrelevant because it does not make any
elemental facts more or less probable.

      The trial court did not abuse its discretion by implicitly concluding that the
July transaction is relevant for several reasons. First, the July transaction gives
some context to the relationship between appellant and the complainant. Second, it
explains Bartholomew’s testimony that appellant and his associates were asking
the complainant to inform them of the location of “the door,” as well as
Bartholomew’s testimony that Avalos said the complainant knew appellant,
Avalos, and the Associates and knew where they lived. Third, the July transaction
demonstrates appellant’s and Avalos’s willingness and interest in using dishonest
tactics to get drugs for free. All of these facts make the existence of consequential
facts more likely than they would be without the evidence of the July transaction.
The trial court did not err in determining that evidence of the July transaction is
relevant to the charged offense. See Hernandez v. State, 171 S.W.3d 347, 360–61
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

      2. Potential for Prejudice

      Appellant argues the trial court abused its discretion in admitting evidence of
the July transaction because the probative value of the evidence was substantially
outweighed by its potential prejudice under Texas Rule of Evidence 403. We

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complainant knew who they were and where they lived. Avalos projected that had
they not done what they did, the complainant would have retaliated.

      The jury found appellant guilty as charged and the trial court sentenced
appellant to life without the possibility of parole.

                                II.            ANALYSIS

      A. Admitting Evidence of the Extraneous Marijuana Transaction

      In his first three issues, appellant asserts the trial court erred in admitting
into evidence testimony regarding the July transaction because the evidence was
irrelevant, more prejudicial than probative, and prohibited under Texas Rule of
Evidence 404(b). Appellate courts review a trial court’s ruling on the admissibility
of evidence under an abuse-of-discretion standard. See Coble v. State, 330 S.W.3d
253, 272 (Tex. Crim. App. 2010); Mayreis v. State, —S.W.3d—, 2015 WL
1346045, at *6 (Tex. App.—Houston [14th Dist.] 2015, no pet.) Article 38.36 of
the Texas Code of Criminal Procedure, which applies in prosecutions for murder,
provides in relevant part:

      In all prosecutions for murder, the state or the defendant shall be
      permitted to offer testimony as to all relevant facts and circumstances
      surrounding the killing and the previous relationship existing between
      the accused and the deceased, together with all relevant facts and
      circumstances going to show the condition of the mind of the accused
      at the time of the offense.
Tex. Code Crim Proc. art. 38.36(a) (West, Westlaw through 2013 3d C.S.).
Evidence admissible under Article 38.36 still must meet the requirements of the
rules of evidence. Smith v. State, 5 S.W.3d 673, 679 (Tex. Crim. App. 1999).

      1. Relevance

      Appellant argues that the trial court abused its discretion in admitting
testimony regarding the July transaction because that testimony is irrelevant.
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Evidence is relevant if it tends to make the existence of any consequential fact
more or less probable than it is without the evidence. Tex. R. Evid. 401; Moralez
v. State, 450 S.W.3d 553, 569 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
Extraneous-offense evidence is relevant if it logically makes elemental facts, such
as intent or knowledge more or less probable, or if it makes the defense’s evidence
attempting to undermine these elemental facts more or less probable. Montgomery
v. State, 810 S.W.2d 372, 387–88 (Tex. Crim. App. 1991) (op. on reh’g).
Appellant argues the July transaction is irrelevant because it does not make any
elemental facts more or less probable.

      The trial court did not abuse its discretion by implicitly concluding that the
July transaction is relevant for several reasons. First, the July transaction gives
some context to the relationship between appellant and the complainant. Second, it
explains Bartholomew’s testimony that appellant and his associates were asking
the complainant to inform them of the location of “the door,” as well as
Bartholomew’s testimony that Avalos said the complainant knew appellant,
Avalos, and the Associates and knew where they lived. Third, the July transaction
demonstrates appellant’s and Avalos’s willingness and interest in using dishonest
tactics to get drugs for free. All of these facts make the existence of consequential
facts more likely than they would be without the evidence of the July transaction.
The trial court did not err in determining that evidence of the July transaction is
relevant to the charged offense. See Hernandez v. State, 171 S.W.3d 347, 360–61
(Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).

      2. Potential for Prejudice

      Appellant argues the trial court abused its discretion in admitting evidence of
the July transaction because the probative value of the evidence was substantially
outweighed by its potential prejudice under Texas Rule of Evidence 403. We

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presume for the sake of argument that appellant preserved error on this complaint
in the trial court. Texas Rule of Evidence 403, entitled “Exclusion of Relevant
Evidence on Special Grounds,” states:

      Although relevant, evidence may be excluded if its probative value is
      substantially outweighed by the danger of unfair prejudice, confusion
      of the issues, or misleading the jury, or by considerations of undue
      delay, or needless presentation of cumulative evidence.
Tex.R. Evid. 403. Rule 403 favors the admission of relevant evidence and carries
a presumption that relevant evidence will be more probative than prejudicial.
Montgomery, 810 S.W.2d at 389; Moralez, 450 S.W.3d at 569. A proper Rule 403
analysis by either the trial court or a reviewing court includes, but is not limited to,
the following factors: (1) the probative value of the evidence; (2) the potential to
impress the jury in some irrational, yet indelible, way; (3) the time needed to
develop the evidence; and (4) the proponent’s need for the evidence. De La Paz v.
State, 279 S.W.3d 336, 349 (Tex. Crim. App. 2009); Erazo v. State, 144 S.W.3d
487, 489 (Tex. Crim. App. 2004).

      Appellant asserts the evidence regarding the July transaction prejudiced the
jury because it showed the jury that appellant had a “corrupt nature” and that he is
a drug dealer or drug user. Appellant’s participation in the July transaction evinces
both his willingness to engage in dishonest tactics and his interest in obtaining
drugs. The evidence of the extraneous offense is probative because it compels one
to conclude that several facts of consequence are more probable. See Wyatt v.
State, 23 S.W.3d 18, 26 (Tex. Crim. App. 2000).             And, there is substantial
evidence that appellant committed the extraneous offense. See id. (holding that the
first factor is related to the strength of the evidence that appellant in fact committed
the extraneous offense). Several witnesses confirmed that the event occurred and
that appellant was a participant. The July transaction demonstrates appellant’s

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relationship to the complainant and shows that appellant had tried to take drugs
from the appellant before without paying for them, but that appellant did not have
all the information necessary to commit a robbery. It therefore explains why
appellant and his associates were asking the complainant the location of the
“door.”      This explanation makes Bartholomew’s testimony that appellant was
involved in kidnapping appellant more probable. The information also makes
Bartholomew’s testimony that Avalos concluded it was necessary to kill appellant
more probable because it explains how the complainant knew Avalos and
appellant, and it shows the complainant’s willingness to retaliate against Avalos
and appellant. The first factor weighs heavily in favor of finding that the probative
value of the evidence is not substantially outweighed by its potential to cause
prejudice.

      The second and third factors weigh in favor of finding the evidence
prejudicial.    The evidence that appellant is involved in buying drugs has the
potential to impress the jury in an irrational way. And, the State spent more than a
minimal amount of time developing the evidence through the testimony of many
witnesses.

      Under the fourth factor, the State’s need to develop evidence of the July
transaction was significant.    The defense hammered on the lack of physical
evidence connecting appellant to the crime. Still, the testimony regarding the July
transaction was probative; it provided context necessary to explain the testimony of
other witnesses.     The testimony established appellant’s familiarity with the
complainant’s drug-selling business and its potential monetary value, as well as
appellant’s familiarity with the complainant’s apartment complex.            It also
explained appellant’s motivation to kidnap and then murder appellant, either to
retaliate against the complainant or to rob the complainant and McDonald. The

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evidence was thus important to explaining the relationship among the parties and
to laying out the State’s theory of the case, particularly to provide motive — to
account for why appellant was driven to commit the murder. We conclude that a
balance of the factors shows that the trial court did not abuse its discretion in
concluding that the potential for prejudice did not substantially outweigh the
probative value of the evidence. See Tex. R. Evid. 403, Hernandez, 171 S.W.3d at
361.

       3. Rule 404(b)

       Appellant argues the trial court erred in admitting evidence of the July
transaction because the evidence was prohibited under Texas Rule of Evidence
404(b). Under Rule 404(b), evidence of an extraneous offense may be admitted if
it has relevance apart from its tendency to prove the character of a person in order
to show that the person acted in conformity therewith. See Tex. R. Evid. 404(b);
Hernandez, 171 S.W.3d at 360. Evidence has relevance apart from this character-
conformity purpose when the evidence tends to establish some elemental fact, such
as proof of motive, intent, plan, or absence of mistake or accident. See Tex. R.
Evid. 404(b); Hernandez, 171 S.W.3d at 360.

       Appellant argues the State violated Rule 404(b) by using the evidence of the
July transaction to show that appellant was a criminal and therefore in murdering
the complainant appellant was acting in conformity with his criminal character.
We conclude evidence of the July transaction is relevant for other purposes. It
supported the State’s argument that appellant had a plan, intent, and motive to
murder the complainant. Appellant’s plan to kidnap made sense only in light of
the evidence that appellant was familiar with the complainant’s business but
needed more information to steal the complainant’s drugs. Appellant’s intent to
kill the complainant made sense in light of the July transaction and Bartholomew’s

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testimony regarding Avalos’s summation of the complainant’s likely retaliation if
the complainant survived the kidnapping. The evidence was admissible under
Rule 404(b) because it tended to establish appellant’s intent and motivation.

      Appellant makes much of the fact that several other witnesses testified that
appellant was motivated to rob the complainant and argues the trial court should
query the State regarding what direct evidence the State’s other witnesses might
present regarding the defendant’s motive to commit any particular crime.
Appellant suggests that the State should not have been allowed to admit this
evidence because the State presented direct evidence of appellant’s motive. We
need not entertain this argument in this appeal, however, because the evidence of
the July transaction is necessary to explain the State’s direct evidence of
appellant’s intent and motive. Appellant contends that Bartholomew provided
direct evidence of appellant’s motive for the kidnapping and murder and that the
motive was to force the complainant to disclose the location of cocaine. But, this
direct evidence of appellant’s immediate reasoning for kidnapping the complainant
makes sense only in light of the information about the July transaction. Moreover,
although Bartholomew testified that the motivation for the kidnapping was to force
the complainant to disclose the location of the cocaine, Bartholomew’s testimony
regarding the motivation for the murder was different. Bartholomew explained
that Avalos was motivated by the fear that the complainant would retaliate if they
did not kill him. This statement makes sense only in light of the evidence of the
July transaction.

      We conclude the evidence of the July transaction was admissible for
permissible purposes. See Tex. R. Evid. 404(b); Hernandez, 171 S.W.3d at 361
(holding that evidence of prior drug transaction was permissible under 404(b)
because evidence was necessary to establish relationship in order to prove intent).

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The trial court did not abuse its discretion in admitting the testimony regarding the
July transaction into evidence under Rule 404(b). See Tex. R. Evid. 404(b);
Hernandez, 171 S.W.3d at 361.

      Having rejected all of appellant’s contentions regarding the admission of the
evidence of the July transaction, we overrule issues one, two, and three.

      B. Failing to Give Accomplice-Witness Instruction to the Jury

      In appellant’s fourth issue, appellant asserts the trial court erred in refusing
to charge the jury on Watts as a potential accomplice witness. A conviction cannot
be secured upon the testimony of an accomplice unless corroborated by other
evidence tending to connect the defendant to the offense. Tex. Code Crim. Proc.
Art. 38.14; Cocke v. State, 201 S.W.3d 744, 747 (Tex. Crim. App. 2006). The
purpose of the accomplice-witness instruction is to remind the jury that it cannot
use the accomplice’s testimony to convict the defendant unless there also exists
some non-accomplice testimony tying the defendant to the offense.            Id.   An
accomplice-witness instruction is required if the witness participated with a
defendant before, during, or after the commission of a crime, acting with the
required culpable mental state or if the witness is liable under a party-conspiracy
theory. Zamora v. State, 411 S.W.3d 504, 512 (Tex. Crim. App. 2013); Paredes v.
State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).

      Presuming for the sake of argument that the trial court erred in failing to
charge the jury, this court may reverse the conviction only if appellant suffered
harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Lewis v.
State, 448 S.W.3d 138, 143 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d).
The degree of harm required for reversal depends on whether an objection to the
error was made at trial. Id. If no objection was made, we reverse only if the error
resulted in “egregious harm” such that appellant was denied a “fair and impartial
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trial.” Almanza, 686 S.W.2d at 171; Lewis, 448 S.W.3d at 143. If an objection
was made at trial, as in this case, we reverse only if appellant demonstrates “some”
harm from the error. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005);
Lewis, 448 S.W.3d at 143.      Whether analyzing the record for some harm or
egregious harm, the reviewing court should consider the entire jury charge, the
state of the evidence, the arguments of counsel, and any other relevant information
revealed by the record of the trial as a whole. Sanchez v. State, 376 S.W.3d 767,
774 (Tex. Crim. App. 2012). The harm must be actual, not merely theoretical.
Almanza, 686 S.W.2d at 174.

      To measure the sufficiency of the corroborating evidence, we eliminate the
accomplice evidence from the record and determine whether the remaining
inculpatory evidence tends to connect the defendant to the offense. Malone v.
State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008). This evidence may be direct
or circumstantial. Munoz v. State, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993).
The corroborating evidence need not prove the defendant’s guilt beyond a
reasonable doubt. Malone v. State, 253 S.W.3d at 257. Rather, the corroborating
evidence need only link the defendant in some way to the commission of the crime.
Id.

      We conclude the record contains sufficient non-accomplice evidence to
connect appellant to the commission of the crime. McDonald testified about the
July transaction. He knew that appellant was involved in the July transaction and
he followed appellant and Avalos back to Avalos’s home after the July transaction.
The resident identified suspicious vehicles in the apartment complex during the
kidnapping, including a champagne-colored Cadillac. The Cadillac belonged to
Segovia. Segovia’s phone records showed he was in frequent communication with
appellant.

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      The resident specifically identified appellant in court, and to a police officer,
as the individual who pressed a gun into his stomach during the kidnapping.
Appellant argues that the resident’s identification was impeached because
appellant did not identify appellant in a prior police lineup, but the resident
described several of appellant’s identifying features to the police immediately after
the incident, including that appellant wore dreadlocks with lighter tips.         The
resident testified that he was “100%” positive appellant was the person who
commanded him at gunpoint to return to his residence. Appellant argued that the
resident’s identification was not credible because the resident said he could
identify appellant based on appellant’s tattoo, but the resident explained that the
reason he did not pick appellant’s picture out of a police lineup was because the
tattoo was too prominent in that photo. The resident explained, though, that he
remembered the tattoo, but when he was interacting with appellant, appellant’s
forehead was wrinkled and those wrinkles made the tattoo look less prominent.
The resident later saw photos where the tattoo was less prominent and in his
review of those photos he identified appellant.

      The State also admitted into evidence a note sent to Bartholomew in jail.
The handwriting in the note matches handwriting in notes confirmed to have been
written by appellant; Bartholomew also testified that the note came from appellant.
In the note, appellant asks Bartholomew not to testify and explains that the State’s
case depends on all of them “sink[ing]” each other. Appellant wrote that he
understood that Bartholomew wanted to try to testify against him to get out of jail
earlier, but appellant reminded Bartholomew that jail is what comes with being
involved in the streets.

      Non-accomplice evidence included an eye-witness identification, evidence
of a prior relationship between appellant and the complainant and evidence of a

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motivation for appellant to murder the complainant as well as a note from appellant
in which appellant demonstrated an intimate familiarity with the details
surrounding the murder.     This evidence tends to connect appellant with the
commission of the offense. Given the strength of this evidence, we hold that the
jury would not have disregarded the accomplice-witness testimony. See Herron,
86 S.W.3d at 634. Appellant failed to show that he suffered “some” harm by the
failure to include the accomplice-witness instruction. See Malone, 253 S.W.3d at
259. Because we conclude that any error by the trial court in failing to charge the
jury on the accomplice-witness rule was harmless, we overrule appellant’s fourth
issue. See id.

                                      III.   CONCLUSION

      The trial court did not abuse its discretion in admitting into evidence
testimony regarding the July transaction. Any error in the trial court’s failure to
charge the jury on Watts’ status as a potential accomplice witness was harmless.

      The trial court’s judgment is affirmed.




                                /s/               Kem Thompson Frost
                                                  Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and McCally.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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