Opinion issued May 11, 2017




                                   In The

                              Court of Appeals
                                  For The

                       First District of Texas
                         ————————————
                          NO. 01-16-00333-CR
                        ———————————
                 JERRY DWIGHT SHINARD, Appellant
                                     V.
                    THE STATE OF TEXAS, Appellee


                 On Appeal from the 176th District Court
                         Harris County, Texas
                     Trial Court Case No. 1357910


                      MEMORANDUM OPINION
      The State charged Appellant, Jerry Dwight Shinard, with capital murder.1 The

jury convicted Appellant of the lesser-included offense of felony murder2 and

assessed punishment at ten years’ confinement. In one issue on appeal, Appellant

argues that the trial court abused its discretion by denying his motion to suppress.

      We affirm.

                                    Background

      Appellant and Quincy Moss had been close friends until April 2012, when

they stopped communicating over a dispute. In August of 2012, Appellant reached

out to Moss, and they resumed their friendship.

      A week later, on August 15, Appellant found Moss at Moss’s uncle’s house.

Appellant asked to use Moss’s apartment for a drug sale. Moss refused. The two

discussed the matter until Moss finally agreed. Appellant and Moss drove to meet

some others that would participate in the drug sale. All told, there were two women

and four men. The six drove over to Moss’s apartment complex in two cars. At this

time, Appellant revealed to Moss that he and his friends intended to steal the drugs,

instead of paying for them.




1
      See TEX. PENAL CODE ANN. § 19.02(b)(1) (Vernon 2011), § 19.03(a)(2) (Vernon
      Supp. 2016).
2
      See id. § 19.02(b)(3).
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      Moss and the two women remained in the cars during the time at the apartment

complex, except for a moment shortly after arriving when Moss and one of the

women briefly got out of the cars. Video surveillance of the apartment complex

show Appellant and two other men moving around the complex.

      At one point, Appellant was by the cars when the security guard for the

complex walked by. As the guard approached the cars, Appellant walked up to him,

greeted him, and shook his hand. The guard returned the greeting and continued to

patrol the premises.

      Around 5:50 that evening—about an hour after Appellant and his friends

arrived—three Hispanic men arrived at the complex. Appellant and one of his

friends came to the parking lot to meet them. The five men walked to Moss’s

apartment.

      One of the Hispanic men, Robert Villalobos, would later testify at trial about

what happened next. Villalobos testified that the five of them walked into the

apartment. One of Villalobos’s friends had brought 2-3 pounds of marijuana,

packaged and then wrapped in packing tape. Villalobos and one of his friends were

standing in the kitchen area of the room, while the other friend stood near the door.

After one of Appellant’s friends opened the package and announced the marijuana

was good, Appellant’s other friend rushed out of the bedroom, brandishing a firearm.

The man by the door attempted to flee. The man with the gun attempted to stop him.


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In the struggle, the gun fired, striking the fleeing man and ultimately killing him.

Appellant and his friends took the marijuana and fled.

      Video surveillance of the apartment complex show Appellant and his two

friends running towards their cars. As one of the cars is about to exit the complex,

Appellant jumps in and drives away.

      While in the car, Appellant discussed his involvement in the robbery.

Appellant claimed to have fired a gun at a pillow but later dropped the gun.

Appellant, Moss, and the woman in the car—Appellant’s live-in girlfriend—drove

to Appellant’s apartment.    While there, Moss learned that police were at his

apartment and that someone had been killed there. Appellant swore to Moss that he

did not shoot anyone.

      Moss went to his uncle’s house later that evening. While there, he talked to

Appellant on the telephone. Appellant told Moss that, if Moss told the police what

happened, Appellant would have to “ice” someone else. Moss testified that to ice

someone means to kill them and that he understood the “someone else” to be him.

      Police were able to obtain information about the fleeing vehicles from the

surveillance videos. The day after the shooting, Lieutenant R. Blain and Sergeant J.

Robles of the homicide division of the Houston Police Department watched

Appellant’s apartment complex. At one point, they saw the car Appellant had driven

during the shooting leave Appellant’s apartment complex. They arranged for patrol


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officers to follow the car and ultimately pull it over. Appellant was driving the car

when it was pulled over. The police arrested Appellant and drove back to the

apartment complex with him.

      At the complex, Lieutenant Blain, Sergeant Robles, and two patrol officers

approached Appellant’s apartment. Appellant’s live-in girlfriend, Kristane Samuel-

Curry, answered the door. The police asked for permission to search the apartment,

and Curry consented. After doing an initial sweep to verify no one else was in the

apartment, Lieutenant Blain and Sergeant Robles asked Curry to sign a written

consent to search. Curry signed it.

      Curry was taken to a patrol car in front of the apartment as the police searched

the apartment. They found approximately 1.82 pounds of marijuana. They also

seized a pair of shorts matching what Appellant had worn the day before.

      After a while, the police left the apartment, locking it behind them. Some

officers took Curry and Appellant to the police station while Lieutenant Blain and

Sergeant Robles went to the apartment complex where the shooting had occurred.

They watched the surveillance video. While watching the video, the officers recalled

seeing shoes in Appellant’s apartment that matched what he wore during the

shooting.

      Based on this, Lieutenant Blain and Sergeant Robles returned to Appellant’s

apartment complex. They showed the apartment manager the signed consent to


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search. The apartment manager gave them a key to open Appellant’s apartment.

Lieutenant Blain and Sergeant Robles recovered the shoes they had seen and left.

They left about two hours after Curry had signed the consent to search.

      Dried blood was found on one of Appellant’s shoes. DNA testing established

that the blood came from the man shot in Moss’s apartment. Before trial, Appellant

filed a motion to suppress evidence of the shoes and the DNA testing on them.

Appellant argued that Curry’s consent to search the apartment terminated when

Lieutenant Blain and Sergeant Robles left it the first time. Accordingly, Appellant

argued, they did not have consent or a valid warrant to enter the apartment the second

time. The trial court denied the motion.

      At trial, the State offered other DNA evidence linking Appellant to the

robbery and shooting. A cigar butt had been found in Moss’s apartment. DNA

testing revealed a major contributor and minor contributor on the cigar. Appellant

was the major contributor.

      Testimony at trial established that a blunt is a cigar with at least some of its

tobacco removed and replaced with marijuana. Moss testified that he had smoked

blunts with Appellant before. He also testified that he and Appellant had not smoked

any marijuana together in the week between when the two had reconnected and when

the shooting took place.




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                               Standard of Review

      In his sole issue, Appellant argues the trial court abused its discretion by

denying his motion to suppress. We review a trial court’s denial of a motion to

suppress evidence under a bifurcated standard of review. Turrubiate v. State, 399

S.W.3d 147, 150 (Tex. Crim. App. 2013). We give almost total deference to a trial

court’s determination of historical facts, especially if those determinations turn on

witness credibility or demeanor, and we review de novo the trial court’s application

of the law to facts not based on an evaluation of credibility and demeanor. Gonzales

v. State, 369 S.W.3d 851, 854 (Tex. Crim. App. 2012).

      We review the harm resulting from a trial court’s erroneous denial of a motion

to suppress and subsequent admission of evidence obtained in violation of the Fourth

Amendment under the constitutional harmless-error standard. TEX. R. APP. P.

44.2(a); see also Hernandez v. State, 60 S.W.3d 106, 108 (Tex. Crim. App. 2001)

(mandating application of Rule 44.2(a) to harm analysis of trial court’s erroneous

denial of motion to suppress under Fourth Amendment). This standard requires us

to reverse the trial court’s judgment of conviction unless we determine “beyond a

reasonable doubt that the error did not contribute to the conviction or punishment.”

TEX. R. APP. P. 44.2(a); see also Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim.

App. 2008). In applying the harmless-error test, the primary question is whether

there is a “reasonable possibility” that the error might have contributed to the


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conviction. Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (internal

quotations omitted).

      We do not focus on the propriety of the outcome of the trial. Instead, we

calculate, as much as possible, the probable impact of the evidence on the jury in

light of the existence of other evidence. Wesbrook v. State, 29 S.W.3d 103, 119

(Tex. Crim. App. 2000). We “should take into account any and every circumstance

apparent in the record that logically informs an appellate determination whether

‘beyond a reasonable doubt [that particular] error did not contribute to the conviction

or punishment,’” and if applicable, we may consider the nature of the error, the

extent that it was emphasized by the State, its probable collateral implications, and

the weight a juror would probably place on the error. Snowden v. State, 353 S.W.3d

815, 822 (Tex. Crim. App. 2011) (quoting TEX. R. APP. P. 44.2(a)). This requires us

to evaluate the entire record in a neutral, impartial, and even-handed manner and not

“in the light most favorable to the prosecution.” Harris v. State, 790 S.W.2d 568,

586 (Tex. Crim. App. 1989) (internal quotations omitted), disagreed with in part on

other grounds by Snowden, 353 S.W.3d at 821–22; Daniels v. State, 25 S.W.3d 893,

899 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Error does not contribute to

the conviction or punishment if the jury’s verdict would have been the same even if

the erroneous evidence had not been admitted. Clay v. State, 240 S.W.3d 895, 904

(Tex. Crim. App. 2007).


                                          8
                                Motion to Suppress

      When police arrived at the apartment, Curry signed a consent to search the

apartment. Curry was in a patrol car in front of the apartment while the search was

conducted. Police locked up the apartment and went to another location, and Curry

and Appellant were taken to a police station for questioning. Within two hours of

Curry signing the consent, the police returned to the apartment complex, got a key

from the apartment manager, re-entered the apartment, and took a pair of shoes

belonging to Appellant. The victim’s blood was on one of Appellant’s shoes.

      Appellant argues that the signed consent did not extend to the police’s second

search of the apartment and that, accordingly, the shoes and all related evidence

should have been suppressed. We hold that, even if it was error for the trial court to

deny the motion to suppress, the error is harmless. See Mosley, 983 S.W.2d at 259.

      To properly evaluate harm, we must determine what evidentiary value the

shoes have. See Wesbrook, 29 S.W.3d at 119; Snowden, 353 S.W.3d at 822. Here,

the victim’s blood on Appellant’s shoes establishes his presence at the crime scene.

See Meggs v. State, 438 S.W.3d 143, 147 (Tex. App.—Houston [14th Dist.] 2014,

pet. ref’d) (holding victim’s DNA on defendant’s pants established presence at

scene).




                                          9
       Appellant concedes that other evidence establishes his presence at the

apartment complex around the time of the offense. He argues, however, that only

the shoes directly establish his presence within the apartment. We disagree.

       Working from more specific evidence to more general evidence, we begin

with the fact that Villalobos was in the apartment during the offense. Villalobos

testified that he met Appellant in the parking lot, shook hands with him, followed

him into the apartment, stood next to him in the kitchen, and watched him tackle one

of his friends to the ground when the man with the gun came out of the bedroom.

Villalobos identified Appellant in a photographic array shortly after the offense and

again at trial.

       Next, a cigar stub was found in the apartment with Appellant’s DNA

identified as the major contributor. Evidence established that it could have been a

blunt (a cigar with some or all of the tobacco replaced with marijuana), that Moss

and Appellant had smoked blunts in the past, and that they had not smoked any

marijuana together in the four months leading up to the offense. The jury could

reasonably infer from this evidence that Appellant had left the stub there during the

preparation for the offense or during the offense itself.

       In addition, as Appellant notes, multiple pieces of evidence place Appellant

in the apartment complex during the offense. Moss testified that Appellant was




                                          10
working to coordinate the robbery. He testified that Appellant had his apartment

key.

       Surveillance video corroborates Moss’s and Villalobos’s testimony. While it

does not show the people in enough detail to allow identification from the video

itself, the surveillance video does show enough detail to show body shape, skin

color, and style and color of clothing. Both Moss and Villalobos identified people

depicted in the surveillance video. Both identified Appellant as the person seen

wearing a dark t-shirt, green shorts, and white shoes. The shorts found in Appellant’s

apartment during the first search are consistent with the shorts depicted in the video.

       The video also establishes that the security guard passed by the cars at a time

when Appellant was also near the cars. This corroborates the security guard’s

testimony placing Appellant at that location before the shooting.

       The most significant impact of the surveillance video, however, is that it

shows three people that leave the cars before the shooting and that run to the cars

after the shooting. For the jury to conclude that Appellant was not in the apartment,

then, the jury would have to conclude that an extra person was present at the complex

who managed to avoid any interactions with the other three on the surveillance

video. The jury would also have to conclude that this extra person somehow

managed to replace himself with Appellant after Appellant met Villalobos in the

parking lot but before going into the apartment complex, all without Villalobos


                                          11
noticing. This was not a theory developed at trial, and there is no evidence to support

it.

      Finally, Appellant’s statements to Moss after the offense describe his

participation in the robbery, not avoidance of it. When Moss later learned that

someone had been shot in the process, rather than asserting ignorance of what

happened, Appellant affirmatively asserted he had not been the one to shoot the

victim. Later, Appellant threatened that, if Moss talked to police, Appellant would

have to “ice” someone else, indicating Appellant’s participation in killing someone

already.

      Multiple pieces of evidence firmly establish Appellant’s presence in the

apartment. Against this, there was no contradictory evidence to indicate Appellant’s

presence at another location. See Nonn v. State, 117 S.W.3d 874, 883 (Tex. Crim.

App. 2003) (holding admission of challenged evidence, “although powerful

evidence by itself,” was harmless due to other evidence establishing “essentially the

same information”). Accordingly, we hold that any error in the admission of

Appellant’s shoes and related evidence was harmless.

      We overrule Appellant’s sole issue.




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                                   Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Higley, Bland, and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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