Opinion filed June 25, 2015




                                       In The


        Eleventh Court of Appeals
                                    __________

                                No. 11-13-00140-CR
                                    __________

                     CHRISTOPHER REDIC, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 161st District Court
                              Ector County, Texas
                        Trial Court Cause No. B-38,440


                      MEMORANDUM OPINION
      The jury convicted Appellant, Christopher Redic, of murder following his
plea of not guilty. Appellant pleaded “true” to an enhancement paragraph. The jury
assessed punishment at confinement for thirty years, and the trial court sentenced
Appellant accordingly.        On appeal, Appellant asserts that the evidence was
insufficient to convict him of murder and that the trial court erred when it
(1) admitted lay opinion evidence under Rule 701 of the Texas Rules of Evidence,
(2) denied his motion for directed verdict, and (3) failed to include a reasonable
doubt instruction in the jury charge during the punishment phase of the trial. We
affirm.
                                      I. The Charged Offense
        A person commits the offense of murder if he intentionally or knowingly
causes the death of an individual or intends to cause serious bodily injury and
commits an act clearly dangerous to human life that causes the death of the
individual. TEX. PENAL CODE ANN. § 19.02(b)(1), (2) (West 2011). The State
provided notice of a felony enhancement paragraph. The punishment range for a
murder conviction, as enhanced with a prior felony conviction, is confinement for
life or confinement for not less than fifteen years or more than ninety-nine years and
may include a fine not to exceed $10,000. Id. § 12.42(c)(1) (West Supp. 2014).
                                        II. Evidence at Trial
        Freddie Hall (the victim) was shot and killed at the Odessa Motor Inn (the
Inn).       The State presented three eyewitnesses—Karlosia Tatum, Jamar Jarnel
Gearard, and Monica Hall (the victim’s wife)—all of whom testified that they saw
Appellant, whose nickname was “Dutch,” shoot the victim. The State also presented
other witnesses who were at the scene, including Misty Walden and Scota Gaston,1
who described events before and after the shooting. Alvanisha Johnson testified
about events that took place at her apartment after the shooting. The State also
presented the testimony of several law enforcement personnel, who testified about
the investigation and the apprehension of Appellant, and a forensic pathologist,
Dr. Ruth Kohlmeier, who testified about the autopsy she performed on the victim
and the cause of death. Kevin Richard Callahan, a firearms examiner with the Texas
Department of Public Safety, gave his opinion about whether spent shell casings and


        1
          Scota Gaston was Appellant’s girlfriend.

                                                     2
bullets had been fired from the pistol recovered at the location where Appellant was
arrested. The defense asserted that one of two other men at the scene—Robert
Henderson, whose nickname was “Chi Town,” or Gearard—could have been the
shooter.
      A. Events Prior to the Shooting
      Walden testified she was at the Inn when the victim was shot and killed.2 She
was there with Eric Olivas, her boyfriend; Monica; and the victim. Before going to
the Inn, Walden and Olivas had been at the victim and Monica’s apartment to
celebrate Olivas’s birthday. There, they drank and used drugs. Later, they decided
to go to a club but, instead, went to the Inn. The victim drove his Jeep to the Inn and
parked in the parking lot. The victim got out of the Jeep, but Monica, Olivas, and
Walden remained in the Jeep.
      Walden saw Henderson at the Inn. Earlier that day, the victim was upset
because Henderson had bullied Olivas; Henderson and the victim had argued.
Walden thought Henderson and the victim would end up in a fight. In her testimony,
Monica confirmed that the victim had argued with Henderson. Gearard testified
that, a few days before the shooting, he gave Appellant some money to buy drugs
from the victim. Gearard claimed the victim gave him “bad dope,” and Appellant
said he would kill the victim.
      Tatum testified that, on the night of the shooting, she drove Gearard, Gaston,
and Appellant to the Inn. Appellant and Gearard went upstairs, while Gaston and
Tatum stayed in the car. Gearard testified he went to a hotel room with Appellant
and met with Henderson. About an hour later, Gearard, Appellant, Henderson, and
Angie Thatcher went downstairs. Appellant and the victim stood next to the victim’s
Jeep and talked.


      2
       Walden thought of the victim as a brother because he always looked out for her.

                                                  3
        Monica testified that the victim drove her, Walden, and Olivas to the Inn.
Appellant, Henderson, and another man she only knew as “JR”3 came out of
Room 202 and walked downstairs. Walden recalled that the victim and the others
stopped near the passenger side of the Jeep and that the victim was dancing after he
shook hands with someone, but she could not see who it was. Tatum testified that
her car was behind the Jeep and that the victim, Appellant, Henderson, and Gearard
were in front of her car.
        B. The Shooting at the Inn
        Gearard testified that the victim walked to the passenger side of his Jeep and
began to dance and that Appellant then walked over to the victim and struck him on
the head with a gun. Tatum also testified that she saw Appellant walk over to the
Jeep and hit the victim on the head. Monica testified that the victim returned to his
Jeep and continued to dance but that he appeared to be dazed. The victim then
moved to the front of the Jeep and grabbed his chest. Monica saw Appellant with a
gun in his hand and saw Appellant point the gun at the victim. Appellant fired shots.
A bullet hit the ski rack on the Jeep, and debris went into the Jeep through the open
sunroof. Tatum said that Appellant pointed a gun at the victim and that, as the victim
ran around the Jeep, Appellant went after him. Tatum testified she saw the muzzle
flash as Appellant fired two shots at the victim. Appellant was directly in front of
her car. Gearard also saw Appellant fire two or three shots at the victim.4
        Walden heard gunfire, but she ducked down in the Jeep and did not see who
fired the shots. She was hit by debris when a bullet struck the Jeep. Walden saw


        3
         JR’s name is never identified in the record.
        4
        Gearard testified that he did not see Henderson with a gun and did not see him use a gun to shoot
at anyone.




                                                        4
Appellant run around the front of the Jeep and then saw the victim get up and run to
the side of the building. Gaston also heard gunshots, and she ducked down in
Tatum’s car and did not see the shooting.
      Monica moved the Jeep so she could find the victim after he ran to the side of
the building; she found him lying on the ground, flat on his stomach. She got out of
the Jeep and rolled him over. Monica called 911 and told the 911 operator that
Appellant had shot the victim. As Monica spoke to the 911 operator, Walden started
CPR on the victim, but he took only one breath and then stopped breathing.
      C. Events After the Shooting
      After the shooting, Henderson remained at the scene, but Appellant got in the
backseat of Tatum’s car and Tatum drove away. Gaston and Gearard were also in
Tatum’s car. Gearard saw Appellant with the pistol in his lap and said that Appellant
reloaded the pistol.   Tatum drove to the Southwest Oaks Apartments; there,
Appellant threw his T-shirt on the roof of the apartments. Tatum left her car at the
apartments, and the four of them walked to Alvanisha Johnson’s apartment, which
was in another apartment complex.
      Johnson testified that Tatum, Gearard, Gaston, and Appellant came to her
apartment on the night of the shooting and that they acted strangely. Johnson had
not seen them in a month or two, and when they entered, Appellant prayed near the
wall. Tatum also saw Appellant pray when he was in Johnson’s apartment. Tatum
claimed her car had broken down. Johnson did not want them there and asked them
to leave.
      Appellant, Tatum, Gearard, and Gaston left Johnson’s apartment, got into a
taxi, went to a motel, and stayed there overnight. Gearard testified that, while they
were at the motel, Appellant cried and seemed remorseful for what he had done. The
next morning, Gaston, Tatum, Gearard, and Appellant left with Gaston’s mother.
Gaston’s mother took all four of them to another motel, where they had been living,
                                            5
and they checked out of that motel. Later, Appellant, Gaston, and Gaston’s mother
went to Temple, Texas.
      D. Police Investigation, Arrest of Appellant, and Firearms Testing
      Robert Blackman, a sergeant with the Odessa Police Department, was a
corporal on patrol the night of the shooting. He went to the scene and saw a Jeep in
the parking lot and a male lying on the ground. The male had on a T-shirt. There
was a hole in the mid-chest area of the T-shirt, and there was blood around the hole.
Sergeant Blackman saw two females, one of whom was performing CPR; he also
saw a male standing next to the females.
      Crime scene technicians from the Odessa Police Department were dispatched
to the crime scene. There, they took photographs and collected evidence. The
evidence included a knife, paint chip fragments, a piece of the ski rack that had a
bullet hole in it, and a baggie that contained a white powdery substance. Another
officer with the Odessa Police Department recovered a T-shirt from the roof of the
Southwest Oaks Apartments.
      Michael Liverett, a homicide detective with the Odessa Police Department at
the time of the shooting, investigated the victim’s murder. He gathered information
from officers who were at the scene; searched Henderson’s room at the Inn; and
interviewed Monica, Olivas, Walden, Henderson, Memory Harwick, Jamal
Overstreet, Kayla Gaston, Thatcher, Gearard, and Tatum.             He interviewed
Henderson again at the police station.
      Tatum admitted that, when she first spoke to police in Odessa, she denied
seeing anyone shoot the victim and denied seeing Appellant with a gun in his hand.
She said she was scared and did not think the victim had been shot because he got
up from the ground and ran away. Tatum testified that she had asked Appellant,
before the shooting, if he had drugs or a gun on him. Appellant said he did not.


                                           6
       Texas Rangers and United States Marshals assisted in locating Appellant in
Temple, where he was arrested. Law enforcement officers also found Gaston at the
location where Appellant was taken into custody. When officers searched a bag
Gaston had with her, they found a pistol wrapped in men’s underwear, and they also
found ammunition. The pistol and the ammunition were given to Kevin Richard
Callahan, a firearms examiner with the Texas Department of Public Safety, for
testing.
       Callahan examined the shell casings and bullets recovered from the crime
scene and the body bag. He testified that the pistol found in Gaston’s bag had fired
the four cartridge cases and the three bullets given to him.
       E. Autopsy Evidence
       Dr. Kohlmeier testified that she performed an autopsy on the victim. She
located two bullet entry wounds and two corresponding exit wounds. The first bullet
entered the victim’s mid-chest area and exited the left side of the victim’s back. The
first bullet had gone through the heart and the left lung; crossed the diaphragm on
the left side; and injured the stomach, spleen, left kidney, and left adrenal gland.
This gunshot wound was fatal. The second bullet entered the victim’s left thigh
region and exited through the left buttock region and resulted in a soft tissue wound.
Dr. Kohlmeier noted that the victim also had lacerations on the right forearm, left
side of the forehead, left cheek, left side of the jaw, left shoulder, and the palm of
his left hand; there also were bruises on his right thigh and lacerations on his right
knee, right leg, and left knee. She also located a projectile in the body bag, and the
projectile was introduced into eveidence.
       F. Appellant’s Theory
       Tommy Lee Johnson testified that he knew Appellant and the victim but did
not see them argue on the day the victim was shot. Johnson said Appellant was not
the type of person to shoot and kill someone. Appellant argued that Henderson could
                                            7
have been the shooter because of an argument Henderson had had with the victim
over money. Henderson sent a text to the victim that read, “Don[’]t f--k wit[h] me
n---a….[I] want my bread!!!!!!! It is what it is.....on f----n sight!!!!” Walden said,
during a taped interview, that the victim had told Henderson not to bully Olivas and
that Henderson had said in response that he was going to get his pistol. Rusty Martin,
a corporal with the Odessa Police Department at the time of the shooting, spoke with
Monica at the scene. Corporal Martin said Monica did not identify Appellant as the
shooter when he made initial contact with her.
                            III. Discussion and Analysis
      We will first address Appellant’s second and third issues in which he
challenges the trial court’s denial of his motion for directed verdict and the
sufficiency of the evidence. We will then address his first issue, concerning the
admission of Detective Liverett’s testimony, and then the fourth issue, in which
Appellant complains of jury charge error.
      A. Issues Two and Three: Motion for Directed Verdict and Sufficiency
         of the Evidence
      A challenge to a trial court’s ruling on a motion for directed verdict is, in
actuality, a challenge to the sufficiency of the evidence to support the conviction.
Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990). We review a
challenge to the sufficiency of the evidence under the well-recognized standard of
review set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–
89 (Tex. App.—Eastland 2010, pet. ref’d). In that review, we examine all of the
evidence in the light most favorable to the verdict and determine whether, based on
that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.

                                          8
2010). The State adduced evidence from three witnesses—Tatum, Gearard, and
Monica—that saw Appellant shoot the victim and from a fourth witness, Walden,
who saw Appellant with a gun, saw Appellant chase the victim, heard gunshots, and
then saw the victim on the ground after he had been shot.
      Tatum and Gearard testified they saw Appellant hit the victim in the head.
Gearard saw Appellant with the gun in his hand and saw him fire two or three shots
at the victim. Tatum saw Appellant with the gun, saw the victim fall to the ground,
and saw the muzzle flash from two shots. Monica also saw Appellant with a gun in
his hand, which was pointed at the victim. She also heard shots fired and, after the
shooting, called 911 and told the 911 operator that Dutch had shot the victim.
Walden also testified she heard shots fired as Appellant ran around the front of the
Jeep. Walden got out of the Jeep and performed CPR, but the victim died from a
fatal gunshot wound to the chest.
      After the shooting, Gearard saw Appellant with the pistol in his lap and saw
Appellant reload the pistol. Gearard said that Appellant cried and felt bad because
of what he had done.
      Texas Rangers and United States Marshals recovered a pistol and ammunition
from Gaston’s bag. Callahan testified that the bullets and the spent cartridge cases
recovered from the crime scene were fired from the pistol. After a review of the
record, we hold the evidence was sufficient for a rational jury to have found beyond
a reasonable doubt that Appellant was guilty of the murder of the victim. We
overrule Appellant’s second and third issues.
      B. Issue One: Lay Opinion Testimony
      Appellant asserts that the trial court abused its discretion when it admitted
“lay-witness opinion over [his] TEX. R. EVID. 701 objection.” The trial court
overruled Appellant’s hearsay objections in response to the State’s questions about
what Henderson had been doing at the Inn that evening before the shooting and about

                                         9
what his role was in the shooting. At trial, the following exchange occurred during
the prosecutor’s direct examination of Detective Liverett:
            Q. After your interview with the guy known as Chi Town, what
      did you -- and everything else you had available with you at that time,
      what was his role in the incident?

            A. The gentleman known as Chi Town?

            Q. Yes, sir.

              [DEFENSE COUNSEL]: Your Honor, we are going to object to
       this, if this is learned by the detective as a result of hearsay that he
       obtained from others, and not from his actual observations, obviously.

             [PROSECUTOR]: Your Honor, I think he is allowed to testify as
       to his investigation. What he learned, what he developed, and how he
       pursued those avenues. I am just asking him if after his interview with
       Mr. Henderson, if that caused him to feel that Mr. Henderson played a
       certain role, and if so, what that role was.

            THE COURT: I will allow that. Overruled.

             A. To my knowledge, Mr. Henderson had been staying at the
       hotel. From statements of his own, he had been moving narcotics out
       of the hotel and he had been contacting people in and out of his room
       throughout the evening.

            Q. And with regard to this incident -- after you interviewed him,
       what do you feel his role with regard to this incident was?

            A. A witness.

            Q. Merely a witness?

            A. Yes, sir.

      Appellant’s trial counsel did not object at trial that the testimony was improper
under Rule 701 of the Texas Rules of Evidence or that the testimony constituted

                                          10
improper bolstering by Detective Liverett. Appellant lodged a hearsay objection at
trial but has not advanced a hearsay complaint on appeal. Where the complaint on
appeal does not match the objection made at trial, the proffered complaint is waived.
TEX. R. APP. P. 33.1; see Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App.
2004) (stating that the complaint on appeal must comport with that made at trial);
see also Franco v. State, 339 S.W.3d 793, 795 (Tex. App.—Amarillo 2011, no pet.)
Appellant has not preserved these complaints and has waived them. We overrule
Appellant’s first issue.
      C. Issue Four: Reasonable Doubt Instruction in Punishment Phase
      In his fourth issue, Appellant argues that the trial court erred when it failed to
include a reasonable doubt instruction in the jury charge at the punishment phase of
trial. Article 36.14 provides in part that the trial court shall include in the jury charge
“the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West
2007); Huizar v. State, 12 S.W.3d 479, 483 (Tex. Crim. App. 2000). The plain
language of Article 37.07, section 3(a)(1) requires that evidence of extraneous
crimes or bad acts “may not be considered in assessing punishment until the fact-
finder is satisfied beyond a reasonable doubt that [the extraneous bad acts and
offenses] are attributable to the defendant.” Huizar, 12 S.W.3d at 481 (alteration in
original) (quoting Fields v. State, 1 S.W.3d 687, 688 (Tex. Crim. App. 1999))
(internal quotation mark omitted); see CRIM. PROC. art. 37.07, § 3(a)(1) (West Supp.
2014). Statutory violations of Articles 36.14 and 37.07 are purely “charge error”
under Article 36.19, and “Almanza sets forth the appropriate harm analysis for
charge error under article 36.19.” Huizar, 12 S.W.3d at 484–85; see CRIM. PROC.
art. 36.19 (West 2006); Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985).
When we review the jury charge for reversible error, we first decide whether error
exists, and if error exists, then we determine whether the defendant was harmed.
Martinez v. State, 313 S.W.3d 358, 365 (Tex. App.—Houston [1st Dist.] 2009, pet.
                                            11
ref’d) (citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003);
Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994)).
      The State introduced evidence from a witness, Leroy Zaragoza, that Appellant
had assaulted and robbed him two weeks prior to the victim’s murder. The State
argued, in closing, that this extraneous offense evidence demonstrated Appellant’s
propensity for violence. The instructions to the jury in the punishment phase of trial
did not include a reasonable doubt instruction relative to the extraneous offense.
However, defense counsel did not object to the omission of the instruction from the
jury charge. The State has conceded that it was error to omit a jury instruction on
reasonable doubt in the punishment phase of trial, as required under Article 37.07,
section 3(a)(1) of the Texas Code of Criminal Procedure.          Nevertheless, that
concession is not conclusive on appeal. Saldano v. State, 70 S.W.3d 873, 884 (Tex.
Crim. App. 2002); Isham v. State, 258 S.W.3d 244, 248 (Tex. App.—Eastland 2008,
pet. ref’d).   We must conduct an independent examination of the merits of
Appellant’s claim. Isham, 258 S.W.3d at 248. Article 37.07, section 3(a)(1)
provides in relevant part:

      [E]vidence may be offered by the state and the defendant as to any
      matter the court deems relevant to sentencing, including but not limited
      to . . . evidence of an extraneous crime or bad act that is shown beyond
      a reasonable doubt by evidence to have been committed by the
      defendant or for which he could be held criminally responsible.

The plain language of this provision “requires that such evidence may not be
considered in assessing punishment until the fact-finder is satisfied beyond a
reasonable doubt that [the extraneous bad acts and offenses] are attributable to the
defendant.” Huizar, 12 S.W.3d at 481 (alteration in original) (quoting Fields, 1
S.W.3d at 688) (internal quotation mark omitted).
      Because the State offered evidence of the assault on Zaragoza, which was an
extraneous offense that could only be considered as part of the punishment evidence
                                         12
if the jury found beyond a reasonable doubt that Appellant had committed the
offense, the trial court should have given the jury a reasonable doubt instruction. See
Huizar, 12 S.W.3d at 484. The omission of the reasonable doubt instruction from
the jury charge on punishment was error. Id. But because Appellant did not object
to the omission of the instruction, we review the error under the egregious harm
standard. Id. at 484–85.
      Egregious harm occurs, and reversal is required, only when the defendant has
suffered such fundamental harm that he has been deprived of a fair and impartial
trial. Almanza, 686 S.W.2d at 171. Jury charge error is egregiously harmful if “it
affects the very basis of the case, deprives the defendant of a valuable right, or vitally
affects a defensive theory.” Martinez, 313 S.W.3d at 367 (quoting Stuhler v. State,
218 S.W.3d 706, 719 (Tex. Crim. App. 2007)) (internal quotation marks omitted).
      We consider, in our review, the jury charge, the state of the evidence, the
contested issues in the case, the weight of the probative evidence, the arguments of
counsel, and any other relevant information revealed by the record as a whole.
Martinez, 313 S.W.3d at 367 (citing Ngo v. State, 175 S.W.3d 738, 750 n.48 (Tex.
Crim. App. 2005); Almanza, 686 S.W.2d at 171). The review is on a case-by-case
basis, and the defendant must show actual harm, not just theoretical harm, which is
a difficult standard to meet. Almanza, 686 S.W.2d at 174; Martinez, 313 S.W.3d at
367 (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). An
additional part of our assessment includes whether evidence of the extraneous
offense was clear, strong, direct, and unimpeached. Martinez, 313 S.W.3d at 367.
      Appellant cross-examined Zaragoza about his inability to see his assailant on
the night of the attack, but Appellant did not impeach Zaragoza’s testimony about
the attack itself. Zaragoza described the event and identified Appellant as the
assailant. During closing argument, defense counsel mentioned that Appellant had
not been charged with or convicted of that offense. Appellant argues that the
                                           13
omission of the reasonable doubt instruction affected his defensive theory that he
was not a violent person.      However, there was overwhelming evidence that
Appellant murdered the victim.
      The State argued, in closing, that Appellant was a violent person and deserved
to be imprisoned for life.     Defense counsel argued for the lower end of the
punishment range. The jury assessed punishment at confinement for thirty years,
which is much closer to the minimum punishment. After a review of the entire
record, we cannot say that the omission of the reasonable doubt instruction from the
jury charge in the punishment phase, although erroneous, affected the very basis of
Appellant’s case, deprived him of a valuable right, or denied him a fair and impartial
trial. See Almanza, 686 S.W.2d at 174; Martinez, 313 S.W.3d at 367–68. The error
did not result in egregious harm to Appellant. We overrule Appellant’s fourth issue.
                              IV. This Court’s Ruling
      We affirm the judgment of the trial court.




                                                    MIKE WILLSON
                                                    JUSTICE
June 25, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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