Opinion filed May 21, 2009




                                                         In The


   Eleventh Court of Appeals
                                                      ___________

                                              No. 11-07-00128-CR
                                                  __________

                               BRIAN KIETH HENRICKS, Appellant

                                                             V.

                                       STATE OF TEXAS, Appellee


                                    On Appeal from the 9th District Court

                                            Montgomery County, Texas

                                    Trial Court Cause No. 06-02-01200-CR


                                                     OPINION
       Brian Kieth Henricks1 appeals from a guilty verdict for murder. We affirm.
                                                   Background Facts
       Henricks lived with his mother Diane Marie MacBird and her husband Robert MacBird.
They got into an altercation on the night of December 4, 2005. Henricks shot Robert four times,
killing him. Robert also suffered from blunt force trauma to his head. Henricks and Diane took
Robert’s body and dumped it in the national forest area, off Calvary Road in Montgomery County.

       1
           We note that Henricks’s middle name is spelled Kieth and Keith in court documents.
The next day, Diane and Henricks met with attorney Jerald Crow, who arranged a meeting with the
police at his office. The police arrived at Crow’s office and interviewed Diane. Henricks then took
the officers to where they had dumped the body and showed the police where he had put the gun that
he used to shoot Robert.
       Henricks was charged with Robert’s murder. Henricks pleaded not guilty and proceeded to
a jury trial. The jury found Henricks guilty and sentenced him to fifty years confinement in the
Texas Department of Criminal Justice, Institutional Division.
                                          Issues on Appeal
       Henricks raises seven issues on appeal. First, Henricks argues that the trial court erred in
allowing testimony regarding Henricks’s exercise of his right to retain counsel, testimony regarding
his exercise of his right to remain silent, and testimony regarding plea negotiations. Henricks next
argues that the trial court erred in admitting character evidence relating to Henricks when his
character was never placed in issue. In three issues, Henricks argues that he did not receive a fair
trial because the State failed to provide discovery regarding its blood spatter expert. Henricks also
argues that the trial court erred in allowing the State to present an in-court demonstration of how the
victim was killed. Finally, Henricks argues that the trial court erred in sua sponte adding a deadly
weapon finding to the judgment.
                                   Detective Rogers’s Testimony
        Detective Marvin Rogers testified that he received an instruction from his lieutenant to go
to Crow’s office. Detective Rogers testified that Diane and Henricks were present when he arrived.
In response to questions regarding what occurred at Crow’s office, Detective Rogers testified as
follows:
               Q. Were you ever shown or did you ever observe a male?

               A.      Yes.

               Q.      Outside of Jerald Crow?

               A.      Yes.

               Q.      Were you given that individual’s name?



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       A.     Yes.

       Q.     Was that Brian [Kieth] Henricks?

       A.     Yes.

        [DEFENSE COUNSEL]: Excuse me, I’m going to object, Your Honor, to
anything related to this officer by Mr. Crow. It would fall under attorney-client
privilege and my client’s never waived that privilege.

       THE COURT: Overruled.

        Q. [PROSECUTOR] Now, at this point, you know it’s a murder investigation,
correct?

       A.     Correct.

       Q.     Okay. Were these two people identified to you as suspects?

       A.     At the time, Mr. Henricks was.

      Q.     Okay. And did you at any time ask to speak to these two individuals,
Diane Marie MacBird and Brian [Kieth] Henricks?

       A.     Yes, I did.

       Q.     And were you given permission to speak with either one of them?

       A.     I was given permission to speak with Diane MacBird.

              ....

       Q.      Okay. When you asked to speak with Brian [Kieth] Henricks, what
were you told?

       A.     His attorney wanted to speak to him at this time. He wanted to work
with him further for possibly further cooperation down the road.

       [DEFENSE COUNSEL]:           Objection.   Same objection, Your Honor,
attorney-client privilege.

       THE COURT: Overruled.



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              Q. [PROSECUTOR] This whole encounter at Jerald Crow’s office, did
       Mr. Crow ever indicate to you how these people got to his office?

               [DEFENSE COUNSEL]: Objection, again, Your Honor.

               [PROSECUTOR]: That’s a yes or no. We’re not asking for --

               THE COURT: Overruled.

               [DEFENSE COUNSEL]: Attorney-client privilege.

               Q. [PROSECUTOR] Did he indicate how he got there?

               A.      Yes.

               Q.      And did he indicate they would cooperate with you fully?

               A.      Eventually, yes.

               Q.      And did you ever get any further cooperation?

              [DEFENSE COUNSEL]:             Objection, Your Honor.        Same objection,
       attorney-client privilege.

               THE COURT: Overruled.

               THE WITNESS: No.

              Q.   [PROSECUTOR] Throughout your investigation, back from that date
       in December of '05, have you ever interviewed Brian [Kieth] Henricks?

               A.      No.

              Q.      Have you had a few conversations with him that have been limited to
       other matters?

               A.      Yes.

       Henricks argues that Detective Rogers’s testimony is evidence that Henricks exercised his
right to retain counsel and that he followed his counsel’s advice and exercised his right to remain
silent. Henricks also argues that Detective Rogers’s testimony implies that Henricks admitted guilt
to his attorney and that he was willing to cooperate in the hopes of negotiating a lighter sentence.

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        To preserve an issue for appeal, a timely objection must be made that states the specific
grounds for objection, unless the specific grounds are apparent from the context. TEX . R.
APP . P. 33.1(a). A general or imprecise objection may be sufficient to preserve error for appeal if
the legal basis for the objection is obvious to the court and to opposing counsel. Buchanan v. State,
207 S.W.3d 772, 775 (Tex. Crim. App. 2006). Preservation of error provides trial courts an
opportunity to prevent or cure errors so as to permit the trial to continue to a final conclusion free
from attack and reversal on appeal. Id. Therefore, an objection must be specific enough so that the
trial court can make an informed ruling on the subject matter of the objection. Lankston v. State, 827
S.W.2d 907, 909 (Tex. Crim. App. 1992). When the objection is not specific and the legal basis is
not obvious, then an appellate court cannot reach the merits of the issue on appeal. Buchanan, 207
S.W.3d at 775.
        Henricks did not object to Rogers’s testimony on the ground that it was a comment on
Henricks’s right to retain counsel or his right to remain silent. Henricks’s only objection was to
statements made by Crow because these statements were protected by the attorney-client privilege.
Attorney-client privilege protects confidential communications between the client and his attorney
made for the purpose of facilitating the rendention of professional legal services to the client.
TEX . R. EVID . 503 (b)(1). Henricks argues that the objection, while imprecise, was not fatal because
the grounds for objection were apparent from the context of the testimony. We disagree. There is
nothing in the record that would alert the trial court that Henricks was objecting to a violation of his
constitutional rights. Instead, the record indicates that counsel made the objection that he intended
to make. Because that objection does not comport with Henricks’s complaint on appeal, this issue
is not preserved for review. See Routier v. State, 112 S.W.3d 554, 586 (Tex. Crim. App. 2003).
        Even if the objection was sufficient to preserve error, the trial court did not err in allowing
the testimony. To show a violation of Henricks’s right to remain silent, the offending language must
be of such a character that the jury would necessarily take it as a comment on the defendant’s right
to remain silent. Bustamante v. State, 48 S.W.3d 761, 765 (Tex. Crim. App. 2001). It is not
sufficient that the language might be construed as a comment on the defendant’s silence. Id.
Detective Rogers’s testimony did not rise to the level of commenting on Henricks’s right to remain
silent. Henricks argues the jury could infer from Detective Rogers’s testimony that, because


                                                   5
Henricks retained an attorney and followed his advice by not talking to Detective Rogers, he must
be guilty. However, the testimony must do more than create a possible inference. Detective Rogers
testified that he did not interview Henricks during the investigation; however, the testimony does not
indicate that Henricks refused to talk to Detective Rogers. In fact, the evidence showed that
Henricks cooperated in the investigation by leading the police to the discovery of the body and the
gun.
       Evidence that an accused retained counsel is not admissible to establish guilt. Hardie v.
State, 807 S.W.2d 319, 321 (Tex. Crim. App. 1991). But, the fact that Detective Rogers went to
Crow’s office was not offered as evidence of guilt. Detective Rogers testified that he was asked to
go to Crow’s office as part of a homicide investigation. Henricks concedes that this testimony and
testimony that Henricks was at Crow’s office when Rogers arrived is proper. Because this testimony
was proper, the State did not impermissibly comment on Henricks’s exercise of his constitutional
right to counsel.
       There was also no testimony regarding plea negotiations. Henricks was cooperating by
helping the police find the body and the murder weapon. Henricks’s trial strategy was to emphasize
this cooperation. Henricks’s attorney cross-examined Detective Rogers regarding Henricks’s
cooperation and his interactions with Crow. There was no testimony about Henricks entering a plea
or the offer of a plea if he cooperated. The trial court did not err in allowing the testimony. We
overrule Henricks’s first issue on appeal.
                                        Character Evidence
       Henricks argues that evidence of Henricks’s character was improperly admitted because his
character was never placed in issue. We review the trial court’s evidentiary rulings for an abuse of
discretion. Winegarner v. State, 235 S.W.3d 787,790 (Tex. Crim. App. 2007). As long as the trial
court’s ruling is within the zone of reasonable disagreement and is correct under any theory of law
applicable to the case, it must be upheld. Id.
       Generally, character evidence is not admissible to show that a person acted in conformity
with that character on a particular occasion. TEX . R. EVID . 404(a). However, a character trait of the
accused offered by the accused or offered by the prosecution to rebut a character trait offered by the
accused is admissible. Rule 404(a)(1)(A). Admissible character evidence can be offered only in the


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form of reputation or opinion evidence. TEX . R. EVID . 405(a). Specific instances of conduct may
be admissible if the person’s character is an essential element of a charge, claim, or defense. TEX . R.
EVID . 405(b).
       Henricks’s opening statement raised the issue of self-defense. Henricks attacked the victim’s
character by stating that Robert was an angry alcoholic. The State objected to this statement. The
trial court held that, while Henricks could not attack the victim’s character, he could discuss self-
defense. Henricks continued his opening statement:
               You will learn during the day of December the 4th, 2005, Robert MacBird
       was beating Brian’s mother. He beat her not once, not twice, but he attacked her
       three times, three times on December 4th, 2005. This is a case about abuse. It’s a
       case about self-defense, and it’s a case about defending your mother.

Henricks concluded his opening statement by saying that he shot and killed Robert in fear for his life
and in defense of his mother.
       The State called William Allen Srack to testify. Srack testified that he lived in the same
subdivision as Henricks and the MacBirds and that they had visited each other’s homes. Srack
testified about the events of the night of December 4, 2005. Srack testified that Henricks came to
his house the night of the shooting and told him that Robert had Diane on the ground and was trying
to hurt her. Henricks interfered attempting to help Diane. Srack testified that Henricks told him that
Robert had a tire tool and was hitting Henricks and Diane with it.
       The State asked for a sidebar and gave notice of its intent to go into Henricks’s character.
Henricks objected, stating that it was inadmissible specific instances of conduct. The trial court
allowed the testimony, stating that the self-defense issue had been raised. The State asked Srack if
Henricks had a reputation for being peaceful. Srack testified that he had seen examples of Henricks
being aggressive and that his tone of voice was threatening. He further testified that there had been
times when Diane had asked him to come to her home to protect her from Henricks.
       Henricks’s case was based on the defensive theory that Robert was the first aggressor and that
Henricks acted in self-defense and in defense of his mother. The State was allowed to rebut that with
character evidence that Henricks was aggressive and not protective toward his mother. See Jones v.
State, 241 S.W.3d 666, 669 (Tex. App.—Texarkana 2007, no pet.). The trial court did not err in



                                                   7
allowing Srack’s testimony about Henricks’s character. Henricks’s second issue on appeal is
overruled.
                                 Expert Testimony on Blood Spatter
        Henricks argues that the State’s actions in withholding discovery regarding blood spatter
testimony deprived him of a fair trial and that the trial court should not have allowed the evidence
or, alternatively, should have granted his motion for continuance.
        Upon defendant’s request or a trial court’s order, the State is required to disclose a list of
witnesses it intends to use at trial, photographs, defendant’s written statements, letters, accounts, and
other evidence material to any matter in the case. TEX . CODE CRIM . PROC. ANN . art. 39.14 (Vernon
Supp. 2008). Evidence that is willfully withheld from disclosure under a discovery order should be
excluded from evidence. Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006.);
Osbourn v. State, 59 S.W.3d 809, 816 (Tex. App.—Austin 2001), aff’d, 92 S.W.3d 531 (Tex. Crim.
App. 2002). Because exclusion is an extreme solution, it should not be imposed absent willfulness
on the part of the prosecution. Osbourn, 59 S.W.3d at 816. Determining if the State acted willfully
encompasses two factors: (1) whether the prosecutor acted in bad faith in failing to disclose the
evidence and (2) whether the defendant can reasonably anticipate the contested evidence. Wood v.
State, 18 S.W.3d 642, 649-50 (Tex. Crim. App. 2000); Nobles v. State, 843 S.W.2d 503, 514 (Tex.
Crim. App. 1992).
        In determining whether the State acted in bad faith, we ask the following: (1) whether the
defendant established that the State intended to deceive him; (2) whether the State’s notice left the
defendant adequate time to prepare; and (3) whether the State freely provided the defendant with
information by maintaining an open file policy, providing updated witness lists, or promptly
notifying the defendant of new witnesses. Hardin v. State, 20 S.W.3d 84, 88 (Tex. App.—Texarkana
2000, pet. ref’d). Similarly, in determining whether the defense could have anticipated the State’s
witness, we ask the following: (1) the degree of surprise to the defendant; (2) the degree of
disadvantage inherent in that surprise; and (3) the degree to which the trial court was able to remedy
that surprise. Id. at 88-89.
        Henricks filed a discovery motion, but there is no signed standard discovery order in the
record. Henricks attached an unsigned copy of the standard discovery order for Montgomery County


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to his motion for new trial. The standard discovery order states that the State must produce a list of
anticipated trial witnesses, lab reports, physical evidence, reports of experts, and photographs. The
standard discovery order also states that any photographs, diagrams, or models prepared as jury aids
are considered work product.
          A week prior to trial, the State filed a motion for continuance, stating that lab results
regarding blood spatter and DNA would be unavailable until after the scheduled trial date. The trial
court granted the continuance. Subsequently, the State filed a discovery response listing Investigator
Celestina Rossi as a fact witness.2 The next day, the State amended its discovery response listing
Investigator Rossi as an expert witness in the area of crime scene investigation. Henricks filed a
motion for continuance, stating that he had not been provided with some discovery and that DNA
results and blood spatter results would not be available until ten days before trial. Henricks argued
that the standard discovery order required that discovery be made available at least twenty days
before trial. The trial court denied the motion. On the day of trial, the State supplemented its
discovery response by adding that Investigator Rossi would testify as a firearms expert, specifically
regarding the distance of the firearm from the victim when discharged.
           Investigator Rossi testified that she was the lead investigator on the case in charge of
collecting evidence at the scene. She also described evidence that was collected at the scene.
Henricks stipulated that Investigator Rossi was an expert in the fields of bloodstain pattern analysis –
including blood spatter, castoff, and impact – and in the field of firing distances. Investigator Rossi
testified that she believed it would aid the jury in understanding her testimony if the jury was
permitted to view a PowerPoint presentation. The first part of the PowerPoint presentation consisted
of definitions and descriptions of different types and patterns of bloodstains. The second part of
the presentation was comprised of photographs that Investigator Rossi took at the scene. Henricks
objected, stating that he had no notice of the presentation. The State argued that the PowerPoint
presentation was a demonstrative aid that was prepared to aid the jury with Investigator Rossi’s
testimony. The State also argued that the photographs had been made available to Henricks prior
to trial. The trial court allowed the PowerPoint presentation.


          2
            We note that the State filed its discovery response in compliance with the standard discovery order; therefore, the State
cannot rely on the fact that a discovery order was not in effect.

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        Investigator Rossi testified about each photograph in the presentation describing what type
of stain the blood appeared to be: transfer, castoff, or expiratory stain and high, medium, or low
velocity stain. The photographs were already entered into evidence. The photographs had
measurements written on them regarding the size of the bloodstain. The PowerPoint presentation
was not introduced into evidence and is not part of the appellate record.
       Henricks asked for the appointment of an expert to rebut Investigator Rossi’s testimony
regarding blood spatter. The trial court allowed the appointment of an expert, Lou Akin. The trial
court allowed Henricks extra time to prepare his expert and to cross-examine Investigator Rossi.
Also, at the conclusion of the State’s case-in-chief, the trial court allowed Henricks more time to
prepare his case by adjourning early. Akin testified for the defense regarding blood spatter and
rebutted Investigator Rossi’s opinion.
       There is nothing in the record to suggest that the State willfully withheld discovery. Almost
a month before trial began, the State revealed in its motion for continuance that it was anticipating
blood spatter testimony. At least fourteen days prior to trial, Investigator Rossi was listed as an
expert witness in the area of crime scene investigation. The State also updated its discovery
responses and gave Henricks access to the evidence in the case. During trial, Henricks stipulated to
Investigator Rossi’s expertise in the area of blood spatter. Further, in an attempt to remedy any
surprise Henricks may have experienced, the trial court appointed a blood spatter expert for Henricks
and allowed Henricks extra time, mid-trial, to prepare his expert. The State did not act in bad faith,
and Henricks had sufficient notice to anticipate the blood spatter testimony.
       The trial court did not err in allowing Investigator Rossi’s PowerPoint presentation. The
presentation was only an aid for the jury to understand Investigator Rossi’s testimony. A witness
may be allowed to demonstrate before the jury so as to make her testimony more plain and clear.
Phea v. State, 190 S.W.3d 232, 234 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Her
testimony consisted of complex blood spatter analysis, and the presentation was used as a visual aid
to assist the jury while she testified. Henricks had access to all the photographs used in the
presentation, and they had already been entered into evidence. Further, the PowerPoint presentation
was not entered into evidence and was not available to the jury during its deliberations.




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       The trial court did not err in denying Henricks’s motion for continuance. Henricks knew
there would be testimony on blood spatter when the State filed its motion for continuance, almost
two weeks before he filed his motion. Henricks had sufficient time to prepare for any testimony
regarding blood spatter. Henricks’s third, fourth, and fifth issues on appeal are overruled.
                                       In-Court Demonstration
       Henricks argues that the trial court erred in allowing Investigator Rossi to demonstrate her
theory on how Robert was killed. The trial court has discretion whether to admit or exclude a
demonstration. Cantu v. State, 738 S.W.2d 249, 255 (Tex. Crim. App. 1987). The court abuses its
discretion by allowing a demonstration if the facts in evidence do not show that the proposed
demonstration was conducted under substantially similar circumstances and conditions to the event
to which the demonstration relates. Id. A demonstration need not be made under identical
conditions of the event. Valdez v. State, 776 S.W.2d 162, 168 (Tex. Crim. App. 1989); Wright v.
State, 178 S.W.3d 905, 919 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d). Dissimilarities in
the demonstration to the actual event go to the weight to be given the evidence and not the
admissibility of the evidence. Wright, 178 S.W.3d at 919.
        After Investigator Rossi testified regarding the physical evidence observed and collected at
the crime scene, the State asked Investigator Rossi if she had an opinion as to how the bullets entered
and exited the body and if a demonstration would aid the jury in understanding her testimony.
Henricks objected to the demonstration on the basis of surprise and for the reasons that it was outside
the area of the witness’s expertise and that the proper witness for that testimony was Dr. Patricia
Moore, who performed the autopsy. The trial court asked to see the demonstration outside the
presence of the jury. The demonstration was presented outside the presence of the jury, and Henricks
again objected, stating that the demonstration was misleading and that there was no evidence
regarding the trajectory of the bullets within the body. The trial court allowed the demonstration but
gave this limiting instruction to the jury:
       Demonstrations of this nature are based upon the recreation of witnesses who are
       doing the demonstration, based upon what they feel they have learned from the crime
       scene or, et cetera. This is not an actual recreation of what happened. This is their
       opinion of what happened. And you need -- you are the ones who decide what
       weight to be given to the demonstration, if any.



                                                  11
Investigator Rossi testified that the angles used in the demonstration were approximate and that it
was not done to scale. Investigator Rossi used different colored rods to represent each gunshot
wound. Investigator Rossi positioned each rod to demonstrate her opinion as to the position of
Robert’s body at the time of each shot based on the entry and exit wounds.
       The trial court did not abuse its discretion in allowing the demonstration. The demonstration
was supported by facts in evidence. Investigator Rossi’s testimony was based on her personal
observations as well as her deductions from the evidence collected at the scene. Because
Investigator Rossi gave extensive testimony regarding the physical evidence and made reasonable
deductions from it, we find that the demonstration was substantially similar to the actual event as
theorized by the State. Henricks’s sixth issue on appeal is overruled.
                                      Deadly Weapon Finding
       Henricks argues that the trial court erred by sua sponte adding a deadly weapon finding to
the judgment. A defendant is not eligible for community supervision when there is an affirmative
finding that a deadly weapon was used or exhibited during the commission of the offense. TEX .
CODE CRIM . PROC. ANN . art. 42.12, § 3g(a)(1)(I)(2) (Vernon Supp. 2008). Also, a defendant’s
eligibility for parole is affected by a deadly weapon finding. TEX . GOV ’T CODE ANN . § 508.145(d)
(Vernon Supp. 2008); Shankle v. State, 119 S.W.3d 808, 813-14 (Tex. Crim. App. 2003). A deadly
weapon is defined as a firearm or anything manifestly designed, made, or adapted for the purpose
of inflicting death or serious bodily injury or anything that in the manner of its use or intended use
is capable of causing death or serious bodily injury. TEX . PENAL CODE ANN . § 1.07(17) (Vernon
Supp. 2008).
       The trial court may enter an affirmative finding in the judgment on the use of a deadly
weapon when the indictment alleges use of a deadly weapon, the weapon is deadly per se, or the
factfinder affirmatively answers a special issue on the use of a deadly weapon. Polk v. State, 693
S.W.2d 391, 394-95 (Tex. Crim. App. 1985). When the indictment specifically places the issue
before the jury, then an affirmative finding is de facto made when the jury finds the defendant guilty
as charged in the indictment. Polk, 693 S.W.2d at 394; Barecky v. State, 639 S.W.2d 943 (Tex.
Crim. App. 1982). An affirmative finding will arise as a matter of law when the jury finds that a
firearm was used in the commission of the offense because a firearm is a deadly weapon per se.


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Giles v. State, 617 S.W.2d 690 (Tex. Crim. App. 1981); Williams v. State, 567 S.W.2d 507 (Tex.
Crim. App. 1978); Stewart v. State, 532 S.W.2d 349 (Tex. Crim. App. 1976).
       In this case, the trial court did not err in making the affirmative finding for the use of a deadly
weapon. The indictment placed the issue before the jury by alleging that Henricks caused the death
of Robert by shooting him with a firearm. The jury found Henricks guilty as alleged in the
indictment. Therefore, the deadly weapon finding arose as a matter of law. The trial court did not
err in entering a deadly weapon finding in the judgment. Henricks’s seventh issue on appeal is
overruled.
                                             Conclusion
       The judgment of the trial court is affirmed.




                                                                RICK STRANGE
                                                                JUSTICE


May 21, 2009
Publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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