Affirmed as Modified; Opinion Filed August 4, 2015.




                                                         In The
                                            Court of Appeals
                                     Fifth District of Texas at Dallas
                                                   No. 05-14-01365-CR

                                 TERRANCE GERMAINE WILKINS, Appellant
                                                 V.
                                     THE STATE OF TEXAS, Appellee

                                On Appeal from the Criminal District Court No. 6
                                             Dallas County, Texas
                                     Trial Court Cause No. F10-62224-X

                                           MEMORANDUM OPINION
                                        Before Justices Fillmore, Myers, and Evans
                                                Opinion by Justice Myers
           A jury convicted appellant Terrance Germaine Wilkins of the capital murder of Carlon

Hellner, and the trial court imposed an automatic sentence of life imprisonment without the

possibility of parole.1 In twelve issues, appellant challenges the sufficiency of the evidence, the

denial of various motions for mistrial, and several rulings on evidentiary issues. As modified, we

affirm the trial court’s judgment.

                                       BACKGROUND AND PROCEDURAL HISTORY

           Sarah Malesky testified that she and the decedent, Carlon Hellner, lived together in the

apartment where Hellner’s body was found. She had known him for five years and lived with

him for four months before he was killed. Malesky described her relationship with Hellner as a


   1
       The State did not seek the death penalty.
“father-daughter” type of relationship. Malesky admitted she and Hellner sold marijuana out of

the apartment. Hellner drove for Malesky, took phone calls for her, and protected her.

       The apartment next door was a “trap” house where illegal narcotics were sold.

Appellant––Malesky and Hellner called him “Youngster”––sold crack and cocaine out of this

apartment. Malesky had known appellant for approximately a month at the time of these events.

Appellant sold some crack cocaine to Hellner before his death. Hellner had attempted to quit his

crack habit and was clean for six years, but he relapsed and began using crack again in October

2010, around the time the trap house opened. A man named “Shorty” or “Nate” ran the trap

house; appellant worked for him.

       Malesky said that appellant had been in the apartment with her once. Malesky did not

know if appellant spent a lot of time in the apartment with Hellner when she was not there. She

said Hellner would give appellant rides to another apartment complex, and appellant would pay

him with a “nickel” rock (five dollars’ worth) of crack. Malesky had also given appellant a ride

in her car at least once. According to Malesky, Hellner would get upset because appellant “was

showing up and knocking on the door a lot.”

       Malesky testified that on October 26, 2010, she was ill with a fever, sore throat, and

coughing. She and Hellner always locked their front door and it was locked on this occasion.

She took twice the recommended dose of Theraflu, smoked some marijuana, and took Xanax. At

around 6:00 p.m., she went to sleep with the lights on in her bedroom. She awakened to find

appellant standing over her pointing a gun at her. He did not wear a mask or try to hide his

identity. Appellant demanded money and marijuana and picked up some change she had on her

table. He asked Malesky where her stash was, and led her out into the living room. Malesky

told appellant there might be some marijuana in the freezer. When he walked to the refrigerator,

she tried to run, but appellant caught her by the arm and told her to stop playing. He forced her

                                              –2–
into the bathroom, and as he was closing her door he looked Malesky “right in [her] eyes” and

said, “Sarah, I am sorry about what happen [sic] to your daddy, but he started tripping.”

Appellant then shut the door.

       When she thought it was safe, Malesky picked up a knife and went to check on Hellner.

She could not get into Hellner’s room because the closet door was falling over and barricading

the door to the bedroom. She pushed the door open and saw Hellner lying on the floor. She

shook him by his left shoulder and touched his neck but felt no pulse. When she saw he was not

breathing, Malesky pulled a cell phone out of Hellner’s pants pocket and called 911. After she

called 911, she took the marijuana that was hidden under Hellner’s mattress and put it in her

bedroom. Malesky said she did not see Hellner get shot.

       Dallas Police Officer Timothy Gilliam was the first officer to arrive at the scene. He

knocked on the door of the apartment in question, and the door was opened by Malesky.

Malesky was frantic, crying, and appeared to be in a state of shock.

       Malesky led the officer to a bedroom. The door was partially open, but there was an

object in front of the door that prevented it from being opened completely. When the paramedics

pushed the object away, the officer saw Hellner lying on the floor between the bed and a chair.

He appeared to have been shot. The paramedics subsequently told the officer they were unable

to resuscitate Hellner and believed he was dead.

       Detective Will Vick was dispatched to the apartment, where he met with Malesky and the

patrol officers. Detective Vick observed that there was no forced entry into the apartment. As

he did an initial walk-through of the apartment, Detective Vick noticed that the freezer door was

open, a closet door was off of its hinges, and a chair was knocked over. A glass table near

Hellner’s bed had been knocked askew, and held a crack pipe and a “drug baggie.” There was a

knife on the nightstand by the bed in Malesky’s bedroom. Several “baggies” of marijuana, an

                                               –3–
aluminum container, a digital scale, and a grinder were found in her bedroom closet. Detective

Vick also found two empty prescription bottles, for hydrocodone and Alprazolam, in Malesky’s

bedroom. No firearms, bullets or other ammunition were found in the apartment. There were no

blood spatters, blood stains, or latent fingerprints found in the apartment.

       Malesky admitted that when she talked with the detectives she tried to cover up the drug

activity and did not tell them she was selling and using drugs. Although she initially told the

police that $500, her purse (containing her keys), and prescription medications (hydrocodone and

Xanax) were missing from the apartment, she subsequently found everything she had reported

missing. In her interview with the police, Malesky said she knew nothing about the marijuana

that the police found in the apartment and that it must have belonged to Hellner. When she

testified, however, she admitted that she bought a pound of marijuana for about $450 a week

before the incident. Malesky recalled telling the detective that Hellner must have let appellant

into the apartment and that maybe they had been fighting about money or “dope.”

       Malesky was tested for gunshot residue at the police station. A trace evidence examiner

testified that she examined the gunshot residue kit and found two primer gunshot residue

particles on the back of Malesky’s right hand. The examiner was unable to offer an opinion as to

where the particles came from and how they were transferred.

       Dr. Jill Urban, a forensic pathologist, testified about the autopsy that was performed on

Hellner. There were two gunshot wounds to Hellner’s right shoulder, with no exit wounds. The

gunshot wounds resulted from a contact or close range shot, and it was difficult to determine if

there had been a struggle. The toxicology report showed no cocaine present but Hellner’s blood

contained cocaine metabolites. Dr. Urban explained that the presence of cocaine metabolites

indicated it was likely Hellner had smoked or ingested cocaine several hours before he died.

Although the EMS crew was able to get an “electrically measured heart rhythm” while Hellner

                                                –4–
was being transported to the hospital, he was not breathing and had no detectable pulse or

respirations when he arrived at the hospital. Dr. Urban testified that an individual who sustained

injuries like Hellner’s would be unlikely to survive more than a half hour, and probably

“considerably less.” Hellner had a normal body temperature when he arrived at the hospital,

which, according to Dr. Urban, indicated that the wounds were likely sustained within minutes of

his receiving EMS treatment.      Dr. Urban further testified that a “head hair standard” and

fingernail clippings from the left and right hands were taken from Hellner. She also testified,

however, that when signing the final autopsy report she did not see any results from the crime lab

for the fingernail clippings and did not think they were examined.

       A trace evidence examiner testified that she examined Hellner’s clothing and found two

holes in the right front shoulder of his t-shirt. The examiner testified that there was a nitrate

reaction, lead wipe, and vaporous lead reaction near the sites, indicating that the shots were

within an eighteen to twenty-four inch range. A trace evidence supervisor testified he examined

the gunshot residue test performed on Hellner and that the test showed gunshot residue particles

on the back of Hellner’s right hand.

       Appellant was aware the police were looking for him. He was arrested on the afternoon

of November 15, 2010, twenty days after the offense, and was interviewed that day by Dallas

Police Detective Robert Quirk. During the interview, which was videotaped and introduced at

appellant’s trial, appellant told Detective Quirk Hellner had called him and that he was in the

apartment that night to deliver drugs to Hellner. He admitted to waking up Malesky with a gun

in his hand and looking for drugs in the freezer. Appellant said that he did not remain in the

apartment because he had drugs on him and wanted to get rid of them that night. Appellant

described his gun as a .380 pistol and said he later sold it. Appellant repeatedly denied shooting

Hellner. He claimed to have found Hellner on the floor in his bedroom when he arrived at the

                                               –5–
apartment. Detective Quirk also testified that there was no DNA, gunshot residue, fingerprint, or

other physical evidence linking appellant to the offense.

       Heather Thomas, a firearm and tool mark examiner for the Dallas County Crime lab,

testified about the bullets that were fired and examined as evidence. Thomas stated that there

were two bullets, fired by the same gun, consistent with a .32 caliber revolver.

       The day after the medical examiner testified about the autopsy and the fact that the

fingernail clippings taken from Hellner had not been tested, there was discussion among counsel

and the court about several evidentiary matters including the fact that the fingernail clippings had

not been tested. After discussing whether to test the clippings, the parties agreed that the trial

should continue while the tests were being performed. Those test results, which were reported to

the court while the jury was deliberating its verdict, showed Hellner had biological material

under the fingernails of his right hand that did not belong to appellant or Malesky.

       Appellant was convicted by the jury and sentenced to imprisonment for life without the

possibility of parole. He subsequently filed a motion for new trial that argued newly-discovered

or newly-available evidence based on the results of the DNA testing of the fingernail clippings

that had been taken from Hellner during the autopsy. The trial court granted appellant’s motion

for new trial. We vacated the trial court’s order granting a new trial and reinstated the guilty

verdict. See State v. Wilkins, No. 05–12–00154–CR, 2014 WL 465820, at *8 (Tex. App.––

Dallas February 4, 2014, pet. ref’d) (not designated for publication). Appellant now pursues the

direct appeal of his criminal conviction.

                                            DISCUSSION

                                 I. Sufficiency of the Evidence

       In his first issue, appellant argues the evidence is insufficient to support the conviction.

We review appellant’s sufficiency challenge by considering all the evidence in the light most

                                                –6–
favorable to the verdict; based on that evidence and any reasonable inferences, we must

determine whether a rational fact finder could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Thornton v. State,

425 S.W.3d 289, 303 (Tex. Crim. App. 2014). Under this standard, the fact finder has full

responsibility for resolving conflicts in the testimony, weighing the evidence, and drawing

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319. We presume

that the fact finder resolved any conflicts in the evidence in favor of the verdict and defer to that

determination. See id. at 326. We do not reassess witness credibility. Thornton, 425 S.W.3d at

303.

       The indictment in this case alleged appellant committed capital murder by having shot

and killed Carlon Hellner in the course of committing and attempting to commit aggravated

robbery. Shortly before the start of voir dire, the State abandoned the aggravated robbery

allegation and elected to proceed on the theory that appellant committed capital murder in course

of committing and attempting to commit robbery.

       The penal code provides that a person commits capital murder if he commits murder in

the course of committing or attempting to commit robbery.             TEX. PENAL CODE ANN. §

19.03(a)(2). A person commits robbery “[i]f, in the course of committing theft . . . and with

intent to obtain or maintain control of the property, he (1) intentionally, knowingly, or recklessly

causes bodily injury to another; or (2) intentionally or knowingly threatens or places another in

fear of imminent bodily injury or death.”        Id. § 29.02(a).   A person commits theft if he

unlawfully appropriates property with the intent to deprive the owner of it. Id. § 31.03(a).

       The court of criminal appeals has defined “in the course of committing” an offense as

conduct occurring in an attempt to commit, during the commission of, or in the immediate flight

after the attempt or commission of the robbery. Lincecum v. State, 736 S.W.2d 673, 680 (Tex.

                                                –7–
Crim. App. 1987).     When a person is charged with committing murder in the course of

committing a robbery, “[e]vidence is sufficient to support a capital murder conviction if it shows

an intent to obtain or maintain control of property which was formed before or

contemporaneously with the murder.” Sheffield v. State, 189 S.W.3d 782, 791 (Tex. Crim. App.

2006). The State does not have to prove “that the appellant completed the theft of the victim in

order to establish the underlying offense of robbery or attempted robbery.” Young v. State, 283

S.W.3d 854, 862 (Tex. Crim. App. 2009). Instead, if there is evidence from which the jury

rationally could conclude beyond a reasonable doubt that the defendant formed the intent to

obtain or maintain control of the victim’s property either before or during the commission of the

murder, then the State has proven that the murder occurred in the course of robbery. Alvarado v.

State, 912 S.W.2d 199, 207 (Tex. Crim. App. 1995). The jury may infer the requisite intent to

rob from circumstantial evidence, including the conduct of the defendant. Id.; see Young, 283

S.W.3d at 862.

       Appellant raises various arguments concerning why the evidence is insufficient to show

he committed capital murder as charged in the indictment. He argues that the police accepted

Malesky’s story as true and never investigated the case further––failing to test Malesky’s hands

or clothing for gunshot residue at the crime scene, failing to examine her bedroom or the baggies

of marijuana for fingerprints, and failing to confiscate Malesky’s cell phone and examining it for

calls and text messages. Appellant also points out there is no physical evidence––i.e., DNA,

fingerprints, gunshot residue––tying him to the crime scene at the exact time Hellner was shot

and killed. In addition, the only evidence of an alleged robbery or attempted robbery came from

Malesky, who used drugs that night, sold drugs out of the apartment, changed her story of what

happened, and “was more concerned about concealing her marijuana than getting help for her

friend.” Appellant further argues nothing was stolen or attempted to be stolen from the victim at

                                               –8–
the time of the murder; Malesky reported the $500, her purse, and the medication as missing

from the apartment, but she later found everything she had reported missing.

       We find these arguments unconvincing. Although appellant repeatedly attacks Malesky’s

credibility as a witness, the jury was the ultimate judge of the weight and credibility of the

evidence and was free to either accept or reject any or all evidence presented by either side. See

Sorto v. State, 173 S.W.3d 469, 475 (Tex. Crim. App. 2005); Lancon v. State, 253 S.W.3d 699,

707 (Tex. Crim. App. 2008). As for the adequacy or inadequacy of the investigation, Detective

Quirk’s testimony and appellant’s recorded statement show that appellant admitted he was in the

apartment that night. At first, appellant repeatedly denied having had a gun, but then, later in the

interview, he admitted he was armed with a pistol. Appellant also admitted searching the freezer

looking for marijuana, but he admitted this only after Detective Quirk asked appellant, in what

the detective described as an interrogation tactic, what appellant would say if the police found

appellant’s fingerprints on the refrigerator or freezer. A rational trier of fact could consider such

statements by appellant, in connection with the other circumstances of the case, as affirmative

evidence of guilt. See, e.g., Padilla v. State, 326 S.W.3d 195, 201–02 (Tex. Crim. App. 2010.

Moreover, appellant admitted there was “bad blood” between himself and Hellner, and that

Hellner called him and he spoke to Hellner a short time before the victim’s body was found.

Appellant also admitted he ran from the police that night and that he knew the police were

looking for him. It has long been recognized that a jury may infer guilt from the circumstance of

flight. See, e.g., Clayton v. State, 235 S.W.3d 772, 780 (Tex. Crim. App. 2007) (citing Hardesty

v. State, 656 S.W.2d 73, 78 (Tex. Crim. App. 1983)).

       Additionally, while Hellner’s time of death could not be pinpointed, Dr. Urban, the

forensic pathologist, testified that he had a normal body temperature, 98.9 degrees Fahrenheit, at

9:57 p.m., shortly after he arrived at the hospital––at a point when Hellner had no blood pressure,

                                                –9–
pulse, or respirations. Dr. Urban added that the wounds were likely sustained minutes before

Hellner was treated by emergency medical personnel, and that his body temperature would have

been lower than 98.9 degrees if more than an hour had passed since he died. Together with the

other circumstances of this case, the jury could reasonably determine from such evidence that

appellant was at the crime scene when Hellner was shot and killed. As for the argument that the

record does not show appellant took or attempted to take any property, the State was not required

to prove appellant completed the theft in order to establish the underlying offense of robbery or

attempted robbery. See Young, 283 S.W.3d at 862. Malesky testified that when she woke up

appellant immediately began demanding money and marijuana. Other evidence showed that

Malesky and Hellner sold marijuana out of the apartment together, that they did so the entire

time Malesky was at the apartment, and that they shared the apartment. Appellant cites evidence

indicating that the marijuana was Malesky’s exclusive property, but the resolution of conflicts

and inconsistencies in the evidence was the province of the trier of fact. See Bowden v. State,

628 S.W.2d 782, 784 (Tex. Crim. App. 1982) (op. on reh’g).

       It is not our role to act as a “thirteenth juror” and disregard, realign, or reweigh the

evidence in this case. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007);

Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988) (en banc). Our task is limited to

determining whether any rational trier of fact could have found the essential elements of the

offense beyond a reasonable doubt. Jackson, 443 U.S. at 319. Viewing the evidence in the light

most favorable to the verdict, we conclude a reasonable jury could conclude beyond a reasonable

doubt that appellant committed the charged offense. We overrule appellant’s first issue.

                                   II. Motions for Mistrial

       Second and Third Issues

       In his second and third issues, appellant contends the trial court should have granted a

                                              –10–
mistrial because the State did not disclose that Malesky’s “allegedly stolen property,” i.e., the

$500, her purse (and its contents), and her medication, was in fact found, and that the State’s

failure to disclose this fact violated its obligations under Brady. See Brady v. Maryland, 373

U.S. 83 (1963). Appellant also faults the trial court for refusing to provide a curative instruction.

       We review a trial court’s denial of a motion for mistrial and refusal to give a curative

instruction for an abuse of discretion. Hawkins v. State, 135 S.W.3d 72, 76–77 (Tex. Crim. App.

2004) (mistrial); Ladd v. State, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) (mistrial); Berrera v.

State, 291 S.W.3d 515, 518 (Tex. App.––Amarillo 2009, no pet.) (curative instruction). A

mistrial is appropriate when error “is so prejudicial that expenditure of further time and expense

would be wasteful and futile.” Hawkins, 135 S.W.3d at 77 (quoting Ladd, 3 S.W.3d at 567). “In

effect, the trial court conducts an appellate function: determining whether improper conduct is

so harmful that the case must be redone.” Id. We uphold the trial court’s ruling if it was within

the zone of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App.

2010). “Only in extreme circumstances, where the prejudice is incurable, will a mistrial be

required.” Hawkins, 135 S.W.3d at 77; see also Ocon v. State, 284 S.W.3d 880, 884–85 (Tex.

Crim. App. 2009).

       Pursuant to Brady, the State has an affirmative duty under the Due Process Clause of the

Fourteenth Amendment to disclose evidence that is favorable to the defendant and is material to

a defendant’s guilt or punishment. Thomas v. State, 841 S.W.2d 399, 407 (Tex. Crim. App.

1992). To establish a Brady violation, a defendant must show: (1) the State failed to disclose

evidence; (2) the withheld evidence was favorable to the defendant; and (3) the evidence is

material, meaning there is a reasonable probability that, had the evidence been disclosed to the

defense, the result of the proceeding would have been different. Hampton v. State, 86 S.W.3d

603, 612 (Tex. Crim. App. 2002); Little v. State, 991 S.W.2d 864, 866 (Tex. Crim. App. 1999).

                                                –11–
Favorable evidence is material if there is a reasonable probability that had the evidence been

disclosed to the defense, the outcome of the proceeding would have been different. Ex Parte

Kimes, 872 S.W.2d 700, 703 (Tex. Crim. App. 1993). A reasonable probability is a probability

sufficient to undermine confidence in the outcome of the trial. Id. at 702. The mere possibility

that undisclosed evidence may have helped the defense or affected the trial’s outcome does not

establish “materiality” in the constitutional sense. Hampton v. State, 86 S.W.3d 603, 612 (Tex.

Crim. App. 2002). Whether the evidence is material is viewed in the context of the overall

strength of the State’s case. Id. at 613.

       When, as in the present case, the alleged Brady material is discovered during trial, the

inquiry is whether the defendant is prejudiced by the late disclosure. Olivarez v. State, 171

S.W.3d 283, 290 (Tex. App.––Houston [14th Dist.] 2005, no pet.). If the defendant receives the

material in time to put it to effective use at trial, his conviction should not be reversed simply

because it was not disclosed as early as it might or should have been.          See id.; see also

Khoshayand v. State, 179 S.W.3d 779, 783 (Tex. App.––Dallas 2005, no pet.); Valdez v. State,

No. 05–09–01093–CR, 2010 WL 2636149, at *4 (Tex. App.––Dallas July 2, 2010, pet. dism’d)

(not designated for publication).

       The record shows Malesky testified on direct examination that she originally told the

police that the $500, her purse, and the other items were missing from the apartment, but that she

later found her purse and the other items in her bedroom closet.         She testified on cross-

examination that she called Detective Quirk and told him she had found the items that she

originally thought were missing. She could not recall precisely when this call took place, but

estimated it would have been around the 29th or 30th of October. On the following day, prior to

the start of testimony, defense counsel moved for a mistrial based on having learned for the first

time when Malesky was on the witness stand that her purse, medication, and the other items were

                                              –12–
recovered. He argued that this was Brady material that could have been used for impeachment,

and that it would have been crucial in trial preparation, the voir dire of jurors, and in arguing for

a lesser-included offense of murder if it could be proved that appellant “didn’t steal anything.”

Detective Quirk subsequently testified on cross-examination that there was nothing in his notes

indicating he was contacted by Malesky regarding the recovery of the missing property. Defense

counsel asked, “Let me ask you, as far as the information in this case regarding the purse, the

drugs, the money, $500, were you ever contacted by Ms. Malesky indicating that that property

had been found?” He replied, “Not that I recall. I have no notes on that.” The detective also

testified that the first time he learned the missing property had been found was “about a month

ago during trial preparation meeting with the DA,” and that was “the first time I heard that she

found her purse, she found her money and prescriptions.”

       The State acknowledges in its brief that “the record is clear that the information regarding

the erroneous nature of Malesky’s initial claims should have been provided to [a]ppellant’s

defense team more promptly.” During the discussion with the trial court that accompanied the

motion for mistrial, the prosecutor told the court that they mistakenly believed they had provided

the defense with copies of everything in their possession as part of their “open file” policy.

Nevertheless, the State argues the record shows appellant’s defense team received the

information in sufficient time to put it to effective use at trial. We agree. The record reflects that

defense counsel was able to use Malesky’s admission regarding the recovery of the missing

items during his cross-examination, pointing out she “went through” several meetings with

detectives while maintaining that the items were missing, and that if she was mistaken about

those missing items there might be other things about which Malesky was mistaken. In its

closing argument, the defense cited not only the information from Malesky regarding how she

had been wrong in claiming the aforementioned items were missing from the apartment, but also

                                                –13–
the way in which that information had been tardily provided to the defense:

       Look, we start this case out and I find out the day of trial, the day of trial when we
       are in here with a witness on the stand, that $500 wasn’t stolen, that a purse
       wasn’t stolen, that rings weren’t stolen. And you know that I found out that day
       because I asked the detective, and the detective finds out a month or two before
       trial and doesn’t go back and investigate. He gets a GSR [gunshot residue] report
       that comes back for somebody else and doesn’t go out and investigate.

Later, when defense counsel resumed his argument after the State objected that there was no

evidence to support counsel’s suggestion that Hellner may have had “a buddy” with him in his

room that night, “at least one, maybe two,” defense counsel stated:

       And I am glad he objected to that because I’m going to show you some pictures
       that might show it differently. So you keep that in mind. You keep in mind what
       they are trying to keep you from hearing and keep you from seeing by giving
       things late. That’s what you need to keep in mind here.

       We conclude appellant received notice of the information regarding the recovered items

in time to make effective use of it at trial. Accordingly, appellant has failed to show he was

prejudiced by any tardy disclosure of the above-mentioned information, and the trial court did

not abuse its discretion by denying the request for a mistrial. See Wilson v. State, 7 S.W.3d 136,

146 (Tex. Crim. App. 1999) (defendant bears burden of showing prejudice from tardy

disclosure). Our finding that appellant has failed to show he was prejudiced is buttressed by the

fact that there is no indication in the record he sought a continuance upon learning Malesky had

changed her story. See State v. Fury, 186 S.W.3d 67, 73–74 (Tex. App.––Houston [1st Dist.]

2005, pet. ref’d) (defendant’s failure to ask for continuance upon disclosure of Brady material at

trial is a situation in which the defendant either waived any Brady error or essentially conceded

that any Brady error did not prejudice him); see also State v. DeLeon, 971 S.W.2d 701, 706 (Tex.

App.––Amarillo 1998, pet. ref’d); Brindle v. State, No. 05–10–01258–CR, 2012 WL 1150533, at

*3 (Tex. App.––Dallas Apr. 9, 2012, no pet.) (mem. op., not designated for publication).

       As for the trial court’s failure to provide a curative instruction, defense counsel told the


                                               –14–
trial court he was alternatively asking for a curative instruction because the prosecutor who

conducted the voir dire told the panel that the State had an “open file” policy under which the

prosecutor “has to open his file.” That prosecutor explained the policy this way: “Everything in

our file that is not work product––and what I mean by work product is our notes on preparing for

trial––the Defense attorneys have a copy of it. Any statements, any police reports, any DNA

reports, anything like that have been turned over to the Defense.” The trial court ultimately

denied appellant’s request for a curative instruction. Appellant argues that the State’s comments

during voir dire “left a false impression of the real state of the facts about disclosure with the

jury,” and that appellant’s right to a fair trial was thereby prejudiced.

       Appellant, however, never specified what kind of curative instruction he wanted the trial

court to give. Defense counsel asked “for an attempted curative instruction to the jury” that

Malesky’s story had not been provided to appellant’s defense team until the day she testified,

despite what the State’s prosecutor said in voir dire, but the jury was well aware that Malesky

had changed her story regarding the missing property, and that defense counsel did not learn

Malesky’s story had changed until the day of trial. Given that the defense provided no other

indication of what kind of instruction it expected the trial court to provide, we conclude that no

abuse of discretion has been shown. We overrule appellant’s second and third issues.

       Fourth Issue

       In his fourth issue, appellant contends the trial court erred by denying appellant’s request

for a mistrial “concerning highly relevant information not being turned over to the defense prior

to trial.” At issue are the fingernail clippings taken from Hellner that were not tested for DNA

until the later stages of the trial––DNA tests that showed Hellner had biological material under

the fingernails of his right hand that did not belong to appellant or Malesky.

       Appellant contends the trial court’s refusal to grant a mistrial constituted reversible error

                                                 –15–
because highly relevant information was not turned over to the defense prior to trial. The record,

however, shows that the failure to have the DNA results from the fingernail clippings available

sooner was attributable to appellant’s defense team. As we stated in our previous opinion:

       It is undisputed that the State had furnished defense counsel the autopsy report
       months before trial, that the report clearly referred to the fingernail clippings
       taken from the decedent, and that defense counsel completely overlooked the
       report’s reference to the fingernail clippings. Counsel advised the court he was
       shocked when the medical examiner testified about the fingernail clippings.

Wilkins, 2014 WL 465820, at *5. We also stated:

       [Appellant] characterizes the DNA test results conducted on the fingernail
       clippings as the newly discovered evidence and argues the test results were
       unknown to him at the time of trial. At trial, however, it is clear that counsel was
       alarmed only after realizing that the autopsy reported the collection of fingernail
       clippings, a fact counsel admitted overlooking, and that no DNA testing had been
       conducted. In other words, the evidence which was newly discovered by counsel
       was the fingernail clippings. Counsel’s oversight, however, does not render the
       originally discovered evidence, the fingernail clippings, or the subsequently
       developed evidence, the DNA test results, “newly discovered evidence” simply
       because counsel belatedly realized the existence of the fingernail clippings and
       the potential significance of DNA testing. The autopsy report and the information
       regarding the fingernail clippings were in defense counsel’s possession for
       months. Such possession imputes counsel with knowledge of the contents of the
       document. Otherwise, disclosure by the State could be easily undercut by
       counsel’s failure to examine a document. Nor may [appellant] advance a claim of
       “newly discovered evidence” by arguing, as he does, that the DNA test results
       conducted on the fingernail clippings were unknown to him at the time of trial.
       The DNA test results were unknown to [appellant] but only because counsel
       failed to take advantage of the material disclosed and failed to request such testing
       prior to trial. What [appellant] ignores is that the DNA testing process was
       known and available at the time of trial. [Appellant] simply failed to utilize it.
       The [appellant] is responsible for his own lack of knowledge and the
       unavailability of the test results. [Appellant] had the opportunity to request DNA
       testing after receiving the autopsy report. He had a second opportunity when the
       State offered exhibit 108, the actual clippings, into evidence at the outset of the
       trial because exhibit 108 again placed him on notice of the fingernail clippings.
       But in each instance, counsel took no action. We, therefore, find no merit in
       [appellant’s] argument that the DNA test results should be characterized as newly
       discovered evidence unknown to [appellant].

Id.

       “A Brady violation occurs when the state suppresses, willfully or inadvertently, evidence


                                              –16–
favorable to appellant.” Harm v. State, 183 S.W.3d 403, 407 (Tex. Crim. App. 1986). It is

axiomatic that there can be no Brady violation without the suppression of favorable evidence.

Id. As we explained in our previous opinion, the record here shows that appellant’s defense team

was provided with a copy of the autopsy report almost six months before the trial started, that the

autopsy report clearly referred to the fingernail clippings taken from Hellner, and that defense

counsel simply overlooked the report’s reference to the fingernail clippings. Given the record in

this case, the trial court did not abuse its discretion by denying appellant’s request for a mistrial.

       Fifth and Sixth Issues

       In his fifth and sixth issues, appellant argues the trial court erred by refusing to declare a

mistrial based on the State’s having introduced hearsay into evidence, and by refusing to declare

a mistrial when the State elicited hearsay testimony from a detective. These issues concern

testimony from Detective Vick and Detective Quirk.

       Appellant first calls our attention to a portion of Detective Vick’s testimony where he

was asked about State’s exhibit 73, which is a photograph of the bathroom inside the apartment

where Hellner’s body was found. The relevant portion of the record reads as follows:

       Q. What do we see in State’s 73?

       A. Just a picture of the bathroom and the area where she said she retrieved the
       knife from.

       Q. Did you check this bathroom door for latents, as well?

       [DEFENSE COUNSEL:] I’m sorry, Your Honor, I’m going to object again to
       anything she said. Clearly it’s hearsay.

       THE COURT: Sustained.

       [DEFENSE COUNSEL:] Respectfully request that the jury disregard.

       THE COURT: The jury will be instructed to disregard the last answer from the
       witness.

       [DEFENSE COUNSEL:] Respectfully request a mistrial, Your Honor.

                                                 –17–
       THE COURT: Overruled.

       Appellant next directs our attention to a portion of Detective Quirk’s testimony where he

was discussing the interview with appellant. The detective testified that appellant changed his

story about an hour and a half into the interview, admitting he had a gun that night and that he

later sold it. The record then reads as follows:

       Q. During that interview we see you on your cell phone for a little bit; is that
       right?

       A. Yes. I am on the phone with other detectives actually trying to find that
       house. And we found a house, we were unable to develop any leads from the gun
       that way.

       Q. Doesn’t he get specific about where that house is, sir?

       A. He does.

       Q. He gives you in some relation to, I think it’s Lincoln.

       A. Lincoln High School, a particular corner, Hispanic family living there, those
       kinds of details he did give me, yes.

       Q. So he does give up some details saying, I sold the house [sic] to this house, to
       this family, and that’s on the video, right?

       A. Yes.

       Q. Did you investigate that further, sir?

       A. We did––I did.

       Q. Did his information turn out to be correct?

       A. No.

       Q. You were able to make contact with the family that lives in that house?

       A. Yes.

       Q. And had they received any gun from the defendant?

       A. They did not know him.

       [DEFENSE COUNSEL:] Your Honor, I am going to object. That is based upon
       hearsay.


                                               –18–
       THE COURT: Sustained.

       [DEFENSE COUNSEL:] I ask that the jury be instructed to disregard.

       THE COURT: The jury will disregard the last answer and question.

       [DEFENSE COUNSEL:] And respectfully request a mistrial.

       THE COURT: Overruled.

       The trial court sustained appellant’s hearsay objections and promptly instructed the jury

to disregard the complained-of testimony. Such instructions are ordinarily considered sufficient

to cure error associated with an improper question and answer. See Simpson v. State, 119

S.W.3d 262, 272 (Tex. Crim. App. 2003) (“We have held that ‘ordinarily, a prompt instruction to

disregard will cure error associated with an improper question and answer.’”) (quoting Ovalle v.

State, 13 S.W.3d 774, 783 (Tex. Crim. App. 2000)); Martinez v. State, 17 S.W.3d 677, 691 (Tex.

Crim. App. 2000) (“Even when the prosecutor mentions facts outside the record during

argument, an instruction to disregard will generally cure the error.”). This case is no different.

The testimony in question––that Malesky retrieved the knife from the bathroom and that the

family that lived in the house where appellant indicated he sold the gun did not know him––did

not constitute the sort of indelible, prejudicial evidence that normally warrants the granting of a

mistrial. See Wood v. State, 18 S.W.3d 642, 648 (Tex. Crim. App. 2000) (improper statement

must be “of such character as to suggest the impossibility of withdrawing the impression

produced on the minds of the jurors”). Based on the record in this case, we conclude that any

possible harm caused by the testimony in question was cured by the trial court’s prompt

instructions to disregard, and that the trial court did not err by denying the motions for mistrial.

We overrule appellant’s fifth and sixth issues.

       Seventh Issue

       In his seventh issue, appellant contends the trial court erred by denying his motion for

mistrial following an attempt by the State to elicit testimony from Detective Quirk regarding
                                             –19–
whether appellant was telling the truth.

       The record shows that after Detective Quirk testified regarding his law enforcement

background, how he became involved in this case, and his experience interviewing suspects, the

State introduced the videotape of appellant’s interrogation, State’s exhibit 96. The video was

then played for the jury, but problems with the audio prompted the State to pause and ask for a

delay of several minutes. While those audio problems were attended to, the prosecutor continued

his examination of Detective Quirk. Eventually, the State asked him, “From what you know,

throughout the course of the investigation is this defendant telling the truth throughout his

confession?” Before the detective could answer the question, defense counsel objected and

asked to approach the bench, at which point the trial court excused the jury. After the jury left

the courtroom, defense counsel objected to what he called a “highly improper, highly

prejudicial” question, arguing it violated appellant’s Fifth Amendment and due process rights

and that appellant had been prejudiced “beyond any curative instructions the Court could do.”

The trial court assured defense counsel that when the jury returned it would instruct them to

disregard the last question asked by the State, and it ultimately sustained the objection. The

video was played when the jury returned, but further technical difficulties prompted the State to

ask for another delay while the problems were addressed. Following a lunch recess, the court

briefly turned its attention to a juror who testified that she could no longer go on with the trial

due to the death of a family friend. After that juror was excused, and while the jury was still out

of the courtroom, defense counsel reminded the court of his earlier objection and the court’s

promise to instruct the jury to disregard the prosecutor’s last question. When the jurors were

brought in, the trial court instructed them as follows:

       Good afternoon. I want y’all to know that, due to some difficulties in her personal
       life, we have released one of the jurors. So you 12 are now the jury in this case.

       And before we proceed I want to also remind you that right before we saw the
                                                –20–
           video, back when the attorneys were having some technical difficulties, the
           detective was on the stand, a question was asked of him, Defense objected, and
           then we stopped at that time. I have sustained that objection and I am instructing
           you at this time to disregard and not consider for any purpose the question that
           was asked at that time.

The defense also moved for a mistrial, which was denied.

           Although nearly four hours passed between appellant’s initial objection and the

instruction to disregard,2 it is worth remembering that the question to which defense counsel

objected went unanswered. We presume the jury followed the trial court’s instruction. See

Wesbrook v. State, 29 S.W.3d 103, 116, (Tex. Crim. App. 2000). Furthermore, the asking of an

improper question seldom calls for a mistrial, because, in most cases, any harm can be cured by

an instruction to disregard. Ladd, 3 S.W.3d at 567; see also Russeau v. State, 171 S.W.3d 871,

885 (Tex. Crim. App. 2005). A mistrial is required only when the improper question is clearly

prejudicial to the defendant and is of such character as to suggest the impossibility of

withdrawing the impression produced on the minds of the jurors. Ladd, 3 S.W.3d at 567. This is

not such a case. Accordingly, we conclude that any error in this instance was cured by the trial

court’s instruction to disregard, and that the trial court did not abuse its discretion by denying the

motion for mistrial. We overrule appellant’s seventh issue.

           Ninth Issue

           In his ninth issue, appellant argues the trial court erred by failing to grant a motion for

mistrial “when a person in the audience caused a disturbance that prejudiced [a]ppellant’s right

to a fair trial.”

           At issue is a disturbance in the courtroom caused by a bystander when LaShanda

Nwachukwu, appellant’s sister, was on the stand. The State asked Nwachukwu how she felt


     2
        According to the reporter’s record, the initial objection was lodged at 10:37 a.m., and the jury was brought into the courtroom to hear the
instruction to disregard at 2:27 p.m.



                                                                     –21–
when she learned her brother had been charged with murder. She replied, “Bad.” The State then

asked: “You felt bad? Did you feel surprised? I see you shaking your head from side to side.

Does that mean no?” At that point, defense counsel asked to approach the bench. The court

excused the jury and counsel made the following objection:

       Judge, the prosecution was asking what I would believe to be a rather important
       question of this witness as to whether or not she was surprised. The prosecution
       then made a statement that she was shaking her head and asked if that meant no.

       The witness was––had not answered yet, was in the process of answering, at
       which point an individual on the front row in the jury [sic] stood up in hysterics,
       rushed out of the courtroom making a big commotion. I believe that is highly
       prejudicial especially at the point at which that was, especially basically the
       implication to the question is you are not surprised because he committed capital
       murder, which was definitely the implication of the question and she gets up and
       makes that motion.

       I respectfully request a mistrial at this point based upon the actions of the family
       member of the decedent, or whoever it was that was sitting over there. I do not
       think that there is anything that can cure that in the minds of these jurors based
       upon when that happened and the question that was on the table.

       THE COURT: I will hold my ruling for now.

       (Pause in proceedings.)

       THE COURT: On the record.

       I have considered the Defense motion for mistrial and I am going to deny that
       motion at this time.

       [DEFENSE COUNSEL:] Thank you, Your Honor. We would then request a
       curative instruction to the jury that they are to disregard any comments,
       statements or emotions from the gallery and not to consider that in any way, shape
       or form in the jury’s deliberations.

       THE COURT: I will grant that.

When the jury was brought back to the courtroom, the trial court instructed it as follows:

“Before we continue I am going to instruct the jury to disregard any comments or statements or

displays of emotion that were shown in the courtroom before we took our break and not consider

such for any purpose whatsoever in this trial.”


                                                  –22–
       The Texas Court of Criminal Appeals has “long held conduct by a bystander ‘which

interferes with the normal proceedings of a trial will not result in reversible error unless the

defendant shows a reasonable probability that the conduct interfered with the jury’s verdict.’”

Gamboa v. State, 296 S.W.3d 574, 580 (Tex. Crim. App. 2009) (quoting Landry v. State, 706

S.W.3d 105, 112 (Tex. Crim. App. 1985)). “Instructions to the jury are generally considered

sufficient to cure improprieties that occur during trial.” Id. “And we generally presume that a

jury will follow the judge’s instructions” Id.

       The record in this case does not illustrate precisely what kind of disturbance occurred in

the courtroom, but it appears to have been brief in nature, and the jury was quickly excused.

Based on counsel’s description, i.e., that the bystander “stood up in hysterics” and “rushed out of

the courtroom making a big commotion,” it does not appear the bystander made any discernable

statements. In any event, nothing in this record suggests the disturbance was of such a nature

that the jury could not follow the trial court’s instruction. See id. (capital murder defendant not

entitled to mistrial based on outburst by member of victim’s family that shouted “[y]ou did this

for 200 dollars?” during testimony of prosecution witness); Brown v. State, 92 S.W.3d 655, 661

(Tex. App.––Dallas 2002) (victim’s father’s outburst of “[g]ive my son justice, please” during

murder trial cured by trial court’s instructions to disregard comment), aff’d on other grounds,

122 S.W.3d 794 (Tex. Crim. App. 2003). The trial court did not abuse its discretion by denying

appellant’s motion for mistrial. We overrule appellant’s ninth issue.

       Twelfth Issue

       In his twelfth issue, appellant argues the trial court erred by denying appellant’s motion

for mistrial “when one of the State’s prosecutor’s gave a personal opinion about his co-counsel

putting [appellant’s] sister on the witness stand.”

       Appellant’s complaint is based on a comment made by the prosecutor during the State’s

                                                 –23–
closing argument. The relevant portion of the record reads as follows:

       I don’t know many people that go commit a heinous, intentional capital murder
       and call 911 within 13 minutes of doing it, because that’s what they want you to
       believe is that she went and killed the guy she’s known for five years and been
       living with and then calls 911 within 13 minutes. That’s the story they are trying
       to sell you. You buy off on it? I can’t. Again, it’s your decision. But they are
       trying to say that this woman, who had no beef whatsoever with the guy she is
       living with, who is her partner in her drug trade business, who she considered her
       daddy, she is going to go shoot two times and then call 911. Then––and this is
       why my co-counsel––and I think he did a great job putting the defendant’s sister
       on the stand––

       [DEFENSE CO-COUNSEL:] I’m going to object to his characterization of how
       his co-counsel did anything, Your Honor.

       THE COURT: Sustained.

       [DEFENSE CO-COUNSEL:] It’s not proper argument.                   Ask the jury be
       instructed to disregard that statement of this prosecutor.

       THE COURT: The jury will be instructed to disregard the last statement of the
       prosecutor. And you have one minute.

       [DEFENSE CO-COUNSEL:] And because of the prejudicial nature, we must
       move for a mistrial.

       THE COURT: Motion is overruled.

       The State concedes that the prosecutor’s comment that his co-counsel “did a great job

putting the defendant’s sister on the stand” does not fall within any of the four “normal”

categories of proper jury argument. See, e.g., Freeman v. State, 340 S.W.3d 717, 727 (Tex.

Crim. App. 2011) (proper jury argument must generally fall within one of four categories: (1)

summation of the evidence; (2) reasonable deductions from the evidence; (3) responses to

argument of opposing counsel; and (4) pleas for law enforcement). But even when an argument

exceeds the permissible bounds of generally accepted jury argument, it is not reversible unless

the argument is extreme or manifestly improper, violates a mandatory statute, or injects into the

trial new facts harmful to the accused. Wesbrook, 29 S.W.3d at 115. The remarks must have

been a willful and calculated effort on the part of the State to deprive appellant of a fair and

                                              –24–
impartial trial. Id. Instructions to the jury will generally cure most improprieties that occur

during a trial, and we presume that a jury will follow the trial court’s instructions. Gamboa, 296

S.W.3d at 580. Mistrial is an appropriate remedy only in extreme circumstances and is reserved

for a narrow class of highly prejudicial and incurable errors. Hawkins, 135 S.W.3d at 77. If the

harm caused by an improper jury argument is incurable, a motion for mistrial preserves error for

appellate review. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); Young v. State,

137 S.W.3d 65, 70 (Tex. Crim. App. 2004). In determining whether improper jury argument

warrants a mistrial, we balance three factors: (1) severity of the misconduct (the magnitude of

the prejudicial effect of the prosecutor’s remarks); (2) measures adopted to cure the misconduct

(the efficacy of any cautionary instruction by the court); and (3) the certainty of conviction

absent the misconduct (the strength of the evidence supporting the conviction). Hawkins, 135

S.W.3d at 77; Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g).

       When, as in this case, the trial court sustains the objection and instructs the jury to

disregard but denies the defendant’s motion for a mistrial, the issue is whether the trial court

erred by denying the mistrial. Faulkner v. State, 940 S.W.2d 308, 312 (Tex. App.––Fort Worth

1997, pet. ref’d) (op. on reh’g). Applying the above factors, the State concedes the prosecutor’s

comment does not fall within any of the “normal” areas of proper jury argument. But although

improper, the prosecutor’s comment was brief, it did not inject any new facts into the record, and

the jury was in a position to evaluate the truthfulness of the prosecutor’s statement that his co-

counsel did “a great job putting the defendant’s sister on the stand.” Given the nature of the

prosecutor’s comment, we conclude that this first factor does not weigh heavily in appellant’s

favor. See Mosley, 983 S.W.2d at 260. As for the second factor, the trial court sustained the

objection and instructed the jury to disregard the prosecutor’s comment. The court’s instruction

cured any error caused by the comment, which was isolated and not repeated. See Gamboa, 296

                                              –25–
S.W.3d at 580. Turning to the final factor, the prosecutor did not inject any new or harmful facts

into the trial, did not violate a mandatory statute, and the jury was presented with considerable

evidence of appellant’s guilt. See Mosley, 983 S.W.2d at 260. Balancing the relevant factors, we

conclude the prosecutor’s comment did not render ineffective the instruction to disregard, and

that the trial court did not abuse its discretion by denying the motion for mistrial. We overrule

appellant’s twelfth issue.

                                     III. Evidentiary Issues

       Eighth Issue

       In his eighth issue, appellant contends the trial court erred by overruling appellant’s

objection to the 911 manager for the City of Dallas, Kimberly Cole, being allowed to testify

concerning a 911 record when she was not the actual 911 operator that received the call, and that

appellant’s rights to confrontation and cross-examination were thereby violated.

       The operator who took the October 26, 2010 911 call, Velma Finn, was unavailable to

testify at trial because she had suffered a stroke about a year before trial, followed by a series of

strokes since then. The State called Kimberly Cole, the 911 manager for the City of Dallas, and

during her testimony it established a business records predicate for the admission of the 911

record, State’s exhibit 115. See TEX. R. EVID. 803(6). State’s exhibit 115 was an “Incident

Detail Report” that reflected the placement of the 911 call that reported Hellner had been shot.

The report contains various information including the address and apartment number, the caller’s

first name, the time of the call, and the “call back” telephone number of the 911 call. Cole

testified that she was the custodian of records for State’s exhibit 115, that State’s exhibit 115 was

a business record that was prepared by 911 during the course of business, and that the entries in

State’s exhibit 115 would have been made at or near the time of the offense. Cole also testified

that the system was designed to automatically generate, or as she put it “auto-populate,” the

                                               –26–
phone number of the 911 call once a call had been placed, but sometimes the system would slow

down and the 911 operators could manually input the information on the report as they heard it

over the telephone. The recording of Malesky’s 911 call, State’s exhibit 95, which had already

been admitted and played for the jury, showed her giving the 911 operator her address and

telephone number. The defense thus argued it was being denied the right of confrontation as to

whether the phone number of the 911 call was automatically entered by the computer or

manually entered by the 911 operator based on information supplied to her by Malesky.

       We review a trial court’s decision regarding the admissibility of evidence for an abuse of

discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). A trial court abuses

its discretion when its decision lies “outside the zone of reasonable disagreement.” Walters v.

State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).

       Appellant’s argument is that his Sixth Amendment right to confront and cross-examine

the witnesses against him was violated. The Confrontation Clause of the Sixth Amendment

provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with

the witnesses against him. Langham v. State, 305 S.W.3d 568, 575 (Tex. Crim. App. 2010); see

also U.S. CONST.   AMEND.   VI. The threshold inquiry for any supposed Confrontation Clause

violation is whether the admitted statement is testimonial or nontestimonial in nature. Vinson v.

State, 252 S.W.3d 336, 338 (Tex. Crim. App .2008); Lollis v. State, 232 S.W.3d 803, 805–06

(Tex. App.––Texarkana 2007, pet. ref’d). Whether a statement is testimonial or nontestimonial

is a question of law we review de novo. Langham, 305 S.W.3d at 576; see also Wall v. State,

184 S.W.3d 730, 742 (Tex. Crim. App. 2006). Statements are testimonial if “the primary

purpose of the interrogation is to establish or prove past events potentially relevant to later

criminal prosecution.”    Davis v. Washington, 547 U.S. 813, 822 (2006).           Statements are

nontestimonial when made during an interrogation whose objective primary purpose was to

                                              –27–
enable the police to respond to an ongoing emergency. Michigan v. Bryant, 562 U.S. 344, 356

(2011); Davis, 547 U.S. at 822; State v. Echendu, No. 05–11–00346–CR, 2012 WL 1130419, at

*2 (Tex. App.––Dallas Apr. 5, 2012, no pet.) (not designated for publication) (911 telephone call

recording admissible under Confrontation Clause because statements to 911 operator were

nontestimonial).

       “Business and public records are generally admissible absent confrontation not because

they qualify under an exception to the hearsay rules, but because—having been created for the

administration of an entity’s affairs and not for the purpose of establishing or proving some fact

at trial—they are not testimonial.” Melendez–Diaz v. Massachusetts, 557 U.S. 305, 324 (2009);

Sessums v. State, No. 06–14–00017–CR, 2014 WL 5421023, at *7 (Tex. App.––Texarkana Oct.

24, 2014, pet. ref’d) (mem. op., not designated for publication). However, a business or public

record may nonetheless be inadmissible if it is prepared for prosecutorial use or in anticipation it

will be used for prosecutorial purposes. Sessums, 2014 WL 5421023, at *7 (citing Melendez–

Diaz, 557 U.S. at 324).      In such a situation, the business or public record is considered

testimonial and subject to a Confrontation Clause challenge. Id. The intended or anticipated use

of the statement determines whether it is testimonial. Grey v. State, 299 S.W.3d 902, 909 (Tex.

App.––Austin 2009, pet ref’d) (citing Davis, 547 U.S. at 813).

       In this case, we find no violation of appellant’s confrontation rights stemming from the

admission of the 911 “Incident Detail Report.” Regardless of whether the telephone number and

other information on the report was “auto-populated” or entered manually, it would have been

entered during the October 26, 2010 911 call, at a time when the police were responding to a

reported shooting victim. That was before the police had had an opportunity to even begin their

investigation, much less make any arrests. Detective Vick testified that when he first arrived at

the crime scene and began gathering evidence, he had no particular suspects or subjects that he

                                               –28–
was looking for. There is simply no indication the 911 report was prepared for prosecutorial use.

On the contrary, the report contains the kind of information that would have aided the police in

responding to the reported shooting and providing emergency assistance. We conclude the 911

“Incident Detail Report” was nontestimonial in nature and its admission did not violate

appellant’s right to confront or cross-examine the witnesses against him.             We overrule

appellant’s eighth issue

       Tenth Issue

       In his tenth issue, appellant argues the trial court erred by refusing to admit a portion of

his recorded statement where he expressed a willingness to take a polygraph test.

       Texas courts have long held that because polygraph testing is inherently unreliable, the

results of polygraph testing are not admissible for any purpose regardless of whether the

evidence is offered by the State or the defendant. See Nethery v. State, 692 S.W.2d 686, 700

(Tex. Crim. App. 1985). As the Austin Court of Appeals once stated:

       [T]he only reason anyone would take a [polygraph] test is to determine whether
       the witness is telling the truth. Likewise, the only reason a person would agree to
       take a polygraph test is to determine whether that person is telling the truth.
       Neither taking, nor agreeing to take the test, in actuality, determines who is telling
       the truth. The test is inherently unreliable for this purpose. Its inherent
       unreliability notwithstanding, the purpose for the test is to determine whether a
       person is being truthful. Therefore, the only reason one would agree to take, or
       would actually take, the test is for the purpose of resolving the question of
       whether that person is telling the truth, whether that can actually be determined or
       not.

Sparks v. State, 820 S.W.2d 924, 928–29 (Tex. App.––Austin 1991, no pet.); see also Kirk v.

State, 07–97–0389–CR, 1999 WL 158496, at *7 (Tex. App.––Amarillo Mar. 12, 1999, no pet.)

(not designated for publication) (citing Sparks). Texas courts also hold that when, as in this case,

the accused does not take the stand, self-serving statements are not admissible where they are

merely contradictory to some act or declaration first proffered by the prosecution. Hafdahl v.

State, 805 S.W.2d 396, 402 (Tex. Crim. App. 1990), disavowed on other grounds by Cook v.
                                               –29–
State, 858 S.W.2d 467, 469 (Tex. Crim. App. 1993); see also Moore v. State, 849 S.W.2d 350,

351 n.1 (Tex. Crim. App. 1993) (Baird, J., concurring); Reado v. State, 690 S.W.2d 15, 17 (Tex.

App.––Beaumont 1984, pet. ref’d); Kirk, 1999 WL 158496, at *7.

         At trial, the defense argued it should be allowed to show appellant was willing to take a

polygraph test to rebut the State’s argument regarding appellant’s flight as a circumstance of

guilt:

         [T]he one issue I am talking about is my client agreed to take a polygraph test.
         And I think that that is very relevant because a time was set up where the
         investigator was going to come back and take that polygraph test. He never
         showed. Part of what I will show is that they didn’t do a fair and proper
         investigation in this aspect. Whether he took the polygraph or not, it’s the results
         of a polygraph that aren’t admissible. And we’re asking that it goes in there
         because it goes to our client’s state of mind that he was willing to cooperate.

         They are going to argue flight and that flight shows guilt. Well, we can argue
         then that his ability and desire to cooperate combats that flight. So we would
         argue that the fact that he was willing to take a polygraph test, and Quirk had
         indicated he was going to come back and do one, that that in and of itself should
         be admissible and the jury should be able to analyze that and review it in regards
         to all the testimony.

         A trial court does not violate a defendant’s constitutional rights by excluding

inadmissible evidence. Osby v. State, 939 S.W.2d 787, 792–93 (Tex. App.––Fort Worth 1997,

pet. ref’d) (“It goes without saying that a trial court does not violate a defendant’s constitutional

rights by excluding inadmissible evidence.”). As other courts have noted, the only reason a

person would agree to take a polygraph is to prove he is telling the truth––through a means that

courts have long held to be inherently unreliable. See Sparks, 820 S.W.2d at 928–29; Kirk, 1999

WL 158496, at *7.          Appellant’s expressed willingness to take a polygraph test was,

consequently, an out-of-court self-serving declaration offered as proof of his truthfulness, and as

the trial court noted, it was clearly inadmissible. We overrule appellant’s tenth issue.

         Eleventh Issue

         In his eleventh issue, appellant contends the trial court erred by admitting into evidence

                                                –30–
recordings of telephone calls that appellant made while he was an inmate at the Dallas County

Jail. Before the State offered those recordings into evidence, appellant’s co-counsel made the

following objection:

       In anticipation of the State offering jail calls, this defendant has been incarcerated
       in the jail, and it’s my understanding that the jail system here records every
       outgoing phone call from defendants and has this process. Our esoteric argument
       is that this is actually the same as having planted an agent into a cell with him to
       record or to get statements from him. So we claim that this is a violation of his
       due process rights to record his conversations and then play them in court without
       first having a Miranda warning. And it’s a violation of 38[.]22.

The trial court overruled the objection. The State later called Scott Seacat, the custodian of

records of the inmate phone system for the Dallas County Jail. Seacat testified a prompt notifies

inmates and the other party to the call at the beginning of the call that it is being “recorded and/or

monitored.” The State also called Jeff Savage, an investigator for the Dallas County District

Attorney’s Office, who testified that he retrieved telephone calls made by appellant at the Dallas

County Jail from November 14, 2010 to December 7, 2010. Savage “burned” those calls to a CD

and gave them to the prosecutor.

       Miranda warnings must be given before a suspect’s statements made during custodial

interrogation may be admitted into evidence. See Miranda v. Arizona, 384 U.S. 436, 444 (1966);

Estrada v. State, 313 S.W.3d 274, 293 (Tex. Crim. App. 2010). The Texas Code of Criminal

Procedure imposes restrictions on the admissibility of an accused’s statements made as a result

of custodial interrogation. See TEX. CODE CRIM. PROC. ANN. art. 38.22, § 2; see also Wilkerson

v. State, 173 S.W.3d 521, 527 (Tex. Crim. App. 2005). In order for a statement to be the result

of “custodial interrogation,” however, it must be made in response to interrogation by law

enforcement officers or their agents. State v. Scheineman, 77 S.W.3d 810, 813 (Tex. 2002); see

Wilkerson, 173 S.W.3d at 527 (noting that Miranda generally applies only to questioning by law

enforcement officers or their agents). In this case, appellant made the statements in question


                                                –31–
during telephone calls that he placed from the jail where he was incarcerated awaiting trial.

Texas courts have long held that statements made under such circumstances are admissible

because an accused has no legitimate expectation of privacy, the loss of which is an inherent

incident of confinement.      See Scheineman, 77 S.W.3d at 813 (arrestee had no “legitimate

expectation of privacy in conversations between arrestees who are in custody in a county law

enforcement building,” and recorded statements made during conversation between arrestees

were admissible); Banargent v. State, 228 S.W.3d 393, 402 (Tex. App.––Houston 14th Dist.

2007, pet. ref’d) (statements made in telephone call by appellant from county jail not the product

of custodial interrogation); Rubio v. State, 04–13–00436–CR, 2014 WL 1319336, at *1 (Tex.

App.––San Antonio Apr. 2, 2014, no pet.) (mem. op., not designated for publication) (telephone

calls made from interrogation room of police station not product of custodial interrogation);

Escalona v. State, No. 05–12–01418–CR, 2014 WL 1022330, at *10 (Tex. App.––Dallas Feb.

20, 2014, pet. ref’d) (mem. op., not designated for publication) (trial court did not abuse its

discretion by admitting recordings of two telephone calls appellant made from county jail). The

trial court did not abuse its discretion by admitting the complained-of statements. We overrule

appellant’s eleventh issue.

                                 IV. Modification of Judgment

       The judgment in this case, under “Punishment and Place of Confinement,” incorrectly

states “LIFE INSTITUTIONAL DIVISION, TDCJ,” when the trial court actually imposed a

mandatory sentence of life imprisonment without parole.         See TEX. PENAL CODE ANN. §

12.31(a)(2). Based on the record and the relevant law, we modify the judgment to reflect that

appellant was sentenced to life imprisonment without the possibility of parole. See TEX. R. APP.

P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529–30 (Tex. App.––Dallas 1991, pet. ref’d)

(providing that an appellate court has the authority to modify incorrect judgments sua sponte

                                              –32–
when the necessary information is available to do so); see also Tyler v. State, 137 S.W.3d 261,

267–68 (Tex. App.––Houston [1st Dist.] 2004, no pet.) (authority to modify judgment is not

dependent upon a party’s request).

       As modified, the trial court’s judgment is affirmed.



                                                              / Lana Myers/
                                                              LANA MYERS
                                                              JUSTICE

Do Not Publish
TEX. R. APP. P. 47
141365F.U05




                                              –33–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

TERRANCE GERMAINE WILKINS,                          On Appeal from the Criminal District Court
Appellant                                           No. 6, Dallas County, Texas
                                                    Trial Court Cause No. F10-62224-X.
No. 05-14-01365-CR         V.                       Opinion delivered by Justice Myers. Justices
                                                    Fillmore and Evans participating.
THE STATE OF TEXAS, Appellee

        Based on the Court’s opinion of this date, the judgment of the trial court is MODIFIED
as follows:

       “Punishment and Place of Confinement: LIFE INSTITUTIONAL DIVISION,
       TDCJ” should be changed to read “Punishment and Place of Confinement: LIFE
       WITHOUT PAROLE INSTITUTIONAL DIVISION, TDCJ.”

As REFORMED, the judgment is AFFIRMED. We direct the trial court to prepare a new
judgment that reflects this modification.

       Judgment entered this 4th day of August, 2015.




                                             –34–
