Opinion issued August 9, 2012




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                           ————————————
                             NO. 01-10-01085-CR
                           ———————————
               EDWARD GEORGE MCGREGOR, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 434th District Court
                          Fort Bend County, Texas
                    Trial Court Case No. 09-DCR-053051



                                 OPINION

      In this cold-case murder prosecution, a jury convicted appellant, Edward

George McGregor, of capital murder, and, because the State did not seek the death
penalty, the trial court automatically assessed punishment at confinement for life.1

In nine issues, appellant contends that (1) and (2) the trial court erroneously

admitted evidence of an extraneous murder offense in violation of Texas Rules of

Evidence 404(b) and 403; (3) and (4) the trial court erroneously admitted evidence

of an extraneous terroristic threat that referenced both the charged offense and the

extraneous murder in violation of Rules 404(b) and 403; (5) the trial court

erroneously denied his motion to dismiss the indictment for lack of a speedy trial;

(6) the trial court erroneously denied his requested jury instruction on third-party

culpability; (7) the State failed to present sufficient evidence that he killed the

complainant during the course of committing either aggravated sexual assault or

burglary; (8) the trial court erroneously admitted physical evidence and DNA test

results derived from that evidence because the State failed to establish the chain of

custody; and (9) the trial court erroneously denied his motion for mistrial made

when a juror indicated during deliberations that she was feeling coerced by the

other jurors to change her opinion.

      We affirm.




1
      See TEX. PENAL CODE ANN. § 19.03(a)(2) (Vernon 2011).
                                         2
                                    Background

      A.     The Charged Offense

      Former Missouri City Police Department (“MCPD”) Officer L. Weathers

was dispatched to a house on Whispering Pines in the Hunters Glen subdivision of

Missouri City around 11:45 p.m. on April 17, 1990. When Officer Weathers

arrived at the house, he noticed that the front door was open, and he saw a white

object lying on the walkway to the front door. As he approached the house, he

discovered that this object was a blood-stained pillow, and he also saw blood on

the walkway and the nearby grass. When he entered the house, he did not see any

signs of a struggle in the living room, but he did see blood stains on the front door.

Officer Weathers heard a moan, and he discovered the complainant, Kim

Wildman, a Caucasian woman in her late thirties, lying on the kitchen floor with

the telephone next to her. She was very pale and was moving slightly in pain.

Officer Weathers testified that “[t]here was quite a bit of blood in the kitchen,”

and, because Wildman was not wearing any clothing, he could see numerous stab

wounds on her arm, one stab wound near her rib cage, one stab wound near her

hip, and deep defensive wounds on her hand.

      Wildman was still conscious at the time, and Officer Weathers asked who

had attacked her. She stated that “a black man” had attacked her, and she indicated




                                          3
that she did not know her attacker.2 Officer Weathers tried to obtain a physical

description, but Wildman started drifting in and out of consciousness. He testified

that she was not in a physical or mental state where she could give him “a lot of

information about what happened.” Wildman died later that evening.

      After backup arrived, Officer Weathers and another officer went upstairs

where they discovered a “very brutal scene.” Officer Weathers testified that there

was blood all over the bed and floor of the bedroom and that the bed had broken at

the headboard. He believed that “[t]here had been a heck of a struggle on the bed

and in that room.” Officer Weathers did not see any weapons in the bedroom, but

he testified that there was a chain connected to the headboard of the bed, and this

chain had blood on it, as well as a clump of hair consistent with Wildman’s. He

believed that she had been restrained with the chain at some point.

      Officer Weathers further testified that, although he did not see any signs of

forced entry by the front door, he saw a dining-room window that had “two holes

punched by the lock” and broken glass. He stated that this method of entry is “a

fairly common way for burglars to get into houses without shattering the whole

window.”




2
      The trial court admitted the tape of Wildman’s 9-1-1 call, during which she stated
      to the dispatcher that she did not know her attacker. Wildman did not mention a
      sexual assault during the 9-1-1 call.
                                          4
      On cross-examination, Officer Weathers agreed that Wildman told him that

“a black man” attacked her, and she did not further qualify this statement by saying

that her attacker was a “young” black man. He did not recall whether he saw any

torn clothes in either the bedroom or the kitchen that may “have been ripped off of

her as she struggled.” He also agreed that the holes in the dining-room window

could have been made by the tip of a screwdriver.

      Former MCPD Detective R. Echols testified that he arrived at the scene

around 12:30 a.m. and that Life-Flight had already taken Wildman to the hospital

by this point. He agreed with Officer Weathers that there was a “considerable”

amount of blood in Wildman’s bedroom, with the majority of the blood located on

the mattress and some blood spatters located on the head and footboards of the bed.

Because papers were “strewn about” the floor, a table was overturned, and the

headboard was broken, Detective Echols believed that a struggle had occurred in

the bedroom and that this location was where Wildman was initially attacked. He

agreed that making small holes near the locking mechanism of a window was a

“fairly common” method of gaining entry into a house. He testified that the

dining-room window screen “looked to be intact,” but it “was not properly

affixed.” He stated that there was no indication that theft was the motive for

breaking into Wildman’s house.




                                         5
      Detective Echols testified that, during the investigation, officers inquired at

nightclubs that Wildman was known to frequent, but they did not receive any

useful information. He also stated that the officers discovered that Wildman had

an interest in topless dancing, but they did not locate any clubs at which she

worked as a dancer at the time of her murder.

      Detective Echols also testified that, several nights after Wildman’s murder,

MCPD officers arrested a young man named Corey Henry for attempted burglary

in the same neighborhood. Henry was carrying one blade of a pair of scissors and

a screwdriver when he was arrested. Detective Echols stated that he later learned

that Henry was arrested in Harris County several months after the burglary arrest

and charged with aggravated sexual assault. Henry remained the prime suspect in

the Wildman murder for several years, but, eventually, he was eliminated as a

suspect through DNA testing.

      Dr. Aurelio Espinola, who formerly worked as a medical examiner for the

Harris County Medical Examiner’s office, conducted Wildman’s autopsy. Dr.

Espinola testified that Wildman had stab wounds on the left side of her chest and

her hip, two stab wounds on her left arm, four stab wounds on her back, and

defensive wounds on her left hand. Dr. Espinola opined, based on the nature of her

injuries, that Wildman resisted her attacker and was moving around while being

attacked. He also testified that he believed Wildman’s wounds were caused by a

                                         6
knife that had a blade with two sharp edges as opposed to one sharp edge and one

blunt edge. When shown the one-bladed scissor that the MCPD officers recovered

from Corey Henry, he testified that it was “very unlikely” that this type of weapon

caused Wildman’s injuries because part of the scissor was thick and blunt, and,

thus, this weapon would have created a stab wound with one sharp edge and one

blunt edge.

      Dr. Espinola also testified that Wildman had a small laceration on the

opening of her vagina. He stated that this was not the type of injury that he would

expect to result from sexual intercourse. He further testified that, “in forceful

sexual intercourse, there will be abrasion[s] and contusion[s],” and Wildman did

not have such injuries. Dr. Espinola also collected oral, vaginal, and rectal swabs

during the autopsy. He testified that the vaginal swab revealed spermatozoa with

complete heads and tails, which indicated that Wildman had recently had

intercourse prior to her death, and the rectal swab revealed spermatozoa with only

the heads present.

      On cross-examination, Dr. Espinola testified that there was no evidence that

Wildman had been strangled by her attacker. He agreed that the vaginal laceration

was “pretty small,” that he could not tell when that injury occurred, and that he

observed no physical trauma indicative of forcible, nonconsensual intercourse

close to the time of death. He also agreed that spermatozoa could reside in the

                                        7
vagina for over a day and that he could not say that the sperm he discovered in

Wildman’s vagina was placed there contemporaneous with her murder.

      Houston Police Department (“HPD”) Investigator R. Swainson testified that,

during the course of investigating a Harris County case in 2005–2006, he met

appellant, who voluntarily provided a DNA sample via a buccal swab. Investigator

Swainson interviewed appellant at both his apartment and HPD headquarters

concerning the Harris County case and released him after the interview.

Investigator Swainson testified that at the time he interviewed appellant and

obtained appellant’s DNA sample he did not know anything about the Wildman

murder. Investigator Swainson subsequently learned about the Wildman murder

and the fact that appellant’s family had lived two doors down from Wildman in

1990 from his partner, Officer J. Binford, and he then shared the results of

appellant’s buccal swab with the MCPD.

      Robin Guidry, a criminal specialist for the HPD Crime Lab, testified that, in

2006, she was an analyst for IdentiGene, a private DNA laboratory that had a

contract with HPD to perform DNA testing and analysis services. Guidry stated

she developed a DNA profile of appellant from the buccal swab collected by

Investigator Swainson.

      On cross-examination, Guidry agreed that the presence of DNA in, for

example, a murder victim’s vagina, by itself, cannot provide information

                                         8
concerning whether the sexual intercourse was consensual or nonconsensual, when

the sexual act occurred, or whether the sexual act was connected to the homicide.

      Former MCPD Officer A. Wiltse testified that she took over the Wildman

investigation in 1996 or 1997, and, a few years after that, she entered the DNA

profile recovered from Wildman’s autopsy into the CODIS database system with

the hope that, at some point, a known DNA sample would match. Several years

after this, she had a conversation with HPD Officer Binford concerning appellant.3

During this conversation, Officer Binford mentioned appellant’s parents’ address

on Whispering Pines. Officer Wiltse then attempted to obtain a comparison of

appellant’s known DNA profile with the DNA recovered from Wildman’s autopsy.

      Kristi Wimsatt, a forensic scientist at the Department of Public Safety Crime

Lab, testified that her lab received the swabs taken during Wildman’s autopsy for

testing. Wimsatt stated that she developed a DNA profile during April 2001, when

her lab was processing DNA samples from cold cases to upload into a database.

Several years later, Wimsatt received appellant’s DNA profile that Guidry had

completed, and she compared appellant’s known DNA profile to the profile that

she herself had created from the samples taken during Wildman’s autopsy. She

3
      Officer Binford testified that he and his partner, Investigator Swainson,
      interviewed appellant concerning an unrelated offense in February 2006, and he
      obtained a buccal swab from appellant. After the interview, Officer Binford
      learned that appellant was planning to move back to Missouri City. He contacted
      the MCPD and informed Officer Wiltse that appellant planned to move back to his
      mother’s house on Whispering Pines.
                                         9
concluded that the DNA profile that she obtained from Wildman’s vaginal swab

was consistent with appellant’s DNA profile developed from the buccal swab.

      Delores Lee Gable, who has multiple felony convictions and is currently

incarcerated at the Hobby Unit in Marlin, Texas,4 testified that, in April 1990, she

and her husband, Brian Gable, who is now deceased, rented a house located close

to Wildman’s. Gable testified that while she was incarcerated in the Hobby Unit

she saw a news report concerning appellant’s prosecution and wrote a letter to the

Fort Bend County assistant district attorney then assigned to this case telling him

that she had relevant information about Wildman’s murder.

      Gable testified that on April 17, 1990, she and her family returned from

dinner around 8:00 p.m. When they arrived, “quite a few” of the neighbors were

outside and police officers were at Wildman’s house.             Gable was taking her

children inside the house from the car when she saw appellant, who was seventeen

years old at the time of Wildman’s murder, speaking with her husband near the end

of their driveway. She heard appellant tell her husband that “he had got into it with

the lady, and they got into a scuffle, and he didn’t mean to, but he had killed her.”

She stated that appellant pointed toward Wildman’s house. Her husband asked

4
      Gable testified that she is currently serving a ninety-year sentence for solicitation
      of capital murder and a seventy-five-year sentence for drug trafficking and has
      been incarcerated since 1995. She also testified that she first heard from the
      parole board in January 2010, eight months before the trial in this case. She stated
      that she has not been promised anything by the State for her testimony in this case
      and that she is concerned for the safety of herself and her family.
                                           10
appellant who he was talking about, and appellant responded, “[T]he white lady.”

Gable also testified that she noticed a “fresh” cut on appellant’s face and that she

had never seen that cut before. She testified that she would be surprised to learn

about a sexual relationship between appellant and Wildman because Wildman

“was a sophisticated type of lady” and Gable could not imagine “her with

[appellant], being young.”

      Appellant’s younger brother, Tesfa McGregor, testified on appellant’s

behalf. He stated that his mother and his siblings moved to Whispering Pines in

1989. He testified that he saw Wildman out in her yard on “more than a few

occasions,” that she was “showy in the kind of clothing that she wore,” and that

Wildman and appellant exchanged pleasantries when they saw each other. On the

day of Wildman’s murder, Tesfa and appellant were playing in their backyard until

around 6:00 p.m., when their mother called them inside for dinner. After eating,

Tesfa went upstairs to his bedroom and stayed up there until around 9:00 p.m. He

then went downstairs, saw appellant in his bedroom, and joined him in playing

video games. He could not account for appellant’s whereabouts in between 6:30

p.m. and 9:00 p.m. Tesfa stayed with appellant for about an hour before going

back upstairs. He “dozed off” around 11:00 p.m. and woke up shortly thereafter

when he heard “some loud talking” coming from the backyard. He did not hear

anyone leave the house from the time he went back upstairs after playing video

                                        11
games with appellant to the time he was awoken by the loud voices, which were

police officers in the McGregors’ backyard. When Tesfa saw appellant after 11:00

p.m., he was wearing the same clothes that he had been wearing when they had

played video games earlier and he did not have any cuts, bruises, or blood on him.

He stated that, after the police arrived at Wildman’s house, he never saw appellant

walk over to another house nearby and talk with the neighbors.

      Appellant’s mother, Sonia McGregor, also testified on appellant’s behalf.

She stated that on the night of Wildman’s murder, she called her children in for

dinner around 6:00 p.m., and she went upstairs while they stayed downstairs to eat.

Sonia took a nap until around 9:00 p.m. that evening and then went downstairs to

do laundry. She could hear appellant and Tesfa playing video games in appellant’s

bedroom. Sonia was downstairs for the rest of the evening, and she did not hear or

see anyone leave her house. Later, she heard appellant yell that someone was

walking in their backyard, and she looked out through the garage and could see

flashing lights. The family all ran outside to see what was happening. She

testified that, while she was standing outside, appellant did not walk over to any of

the other houses on the street. She stated that she had never seen Delores Gable

before, and she did not know Gable or her husband.

      Appellant testified on his own behalf. One day, appellant was walking back

to his house from the store and stopped to talk to Wildman, who was in her front

                                         12
yard. They “flirted a little bit,” and Wildman invited him inside her house where

they continued to talk and “kiss a little bit.” Wildman told him that they needed to

“think about this” and they needed to be discreet. Later, “a couple of weeks

before” Wildman died, appellant went by her house again and, this time, they had

sex.

       On the night of Wildman’s murder, appellant testified that he played with

Tesfa in their backyard until their mother called them inside for dinner around 6:00

p.m. After Tesfa went upstairs, appellant went over to Wildman’s house around

6:30. Appellant and Wildman then had sex in her bedroom upstairs. He testified

that he did not tie her up with a chain. He could not say how long he was there,

but afterwards, Wildman told him that he needed to go because someone was

coming by her house. When he left, Wildman was still alive and had no injuries.

He did not know what time he arrived back home, but he recalled that it was still

daylight when he left Wildman’s.

       At home, appellant took a shower around 8:30 and then played video games

in his bedroom. All of his family members were upstairs at the time. At some

point in the evening, Tesfa joined him and both of them heard their mother come

downstairs and start to do laundry. After Tesfa went back upstairs, appellant

stayed in his bedroom, with the door open, and he did not leave the house until he

heard voices in the backyard. His mother spoke with the police officers, and then

                                        13
the family stood in front of their house and watched the officers and the Life-Flight

helicopter. He testified that no one came over to their house and spoke with them,

and he did not leave to go to another house. He stated that he had never seen

Delores Gable before, and he did not know her husband. Appellant also testified

that, several days later, he had a conversation with his friend Jacques Washington,

and appellant told him that he had had a “sexual encounter” with Wildman.

      B.     The Extraneous Offense

      After several pre-trial hearings and hearings outside the presence of the jury,

the trial court ultimately ruled that the 1994 murder of Edwina “Nina” Barnum, an

African-American woman in her early twenties, in Harris County was admissible

as an extraneous offense to prove identity and consent in the Wildman murder.

The trial court instructed the jury that testimony concerning the Barnum murder

was for “the limited purpose of establishing consent or identity” in the Wildman

case and that the jury should only consider the testimony if it believed beyond a

reasonable doubt that appellant had committed the extraneous offense mentioned.

      HPD Officer H. Ruiz was dispatched to an apartment complex in southeast

Houston around sunrise on May 25, 1994. When Officer Ruiz arrived, she saw

that the front door to Barnum’s apartment had been kicked in.             Inside the

apartment, she saw a body lying fully-clothed on the floor next to one of the beds

in the only bedroom. Officer Ruiz testified that Barnum’s hands were bound

                                         14
behind her back with a bootlace, a belt was secured around her neck, and a pillow

with a gunshot through it was lying over her head. The bed-sheet was wrapped

around one of Barnum’s legs “as if she had been pushed off of the bed.” Officer

Ruiz also observed a bloody knife wrapped in a place mat next to Barnum’s body.

Officer Ruiz stated that the apartment was “a big mess,” with the bedroom being

particularly untidy. She observed Crime Scene Unit Officer Cates, who took

photographs and processed the scene for evidence, fold up the four corners of the

bed-sheet to secure any relevant evidence from the bed. Cates was deceased at the

time of appellant’s trial.

      Former HPD Homicide Division Officer S. Null was assigned to the Barnum

murder. When he arrived at the scene after the initial officers responded, the front

door to Barnum’s apartment was locked, but the center panel of the door had been

kicked in. He stated that the apartment “wasn’t very well taken care of, kind of

messy” and that the contents of Barnum’s purse had been dumped onto the kitchen

table. Barnum was lying fully-clothed on the bedroom floor and “the sheets to the

bed were partially pulled off of the bed onto the floor with [Barnum’s] leg.”

Barnum had a gunshot wound to the back of her head, a stab wound and stun gun

wounds on her back, and several shallow cuts on her neck through a belt fastened

around her neck. Barnum’s arms were bound behind her back. The medical

examiner later informed Officer Null that he did not believe that Barnum had been

                                        15
sexually assaulted because he found no damage or trauma to her vaginal or rectal

areas. The medical examiner performed a sexual assault examination and no

semen or other bodily fluids were recovered. Officer Null acknowledged, on

cross-examination, that he “could find no motive for a sexual assault in this

killing.” During his investigation at the scene, Officer Null learned that Barnum

was a topless dancer at a club called Foxy’s Cabaret and that she also worked as a

prostitute.

       Officer Null, documented the evidence present at the scene while his partner,

Sergeant R. Doyle, spoke to potential witnesses. Officer Null testified that he

observed Officer Cates gather all of the bedding and put it in a container. Later

that day, Officer Cates paged Officer Null and requested that he stop by the crime

scene unit office. When Officer Null arrived at the office, Officer Cates had the

bed sheets from Barnum’s apartment spread out, and Cates showed Null a plastic

evidence bag containing a condom, which Cates said he recovered from the

sheets.5 Officer Null identified an HPD evidence bag, which contained a plastic

bag with a condom inside, that had the correct case number and offense date

pertaining to Barnum’s murder and Officer Cates’s name and badge number. He

5
       Appellant had previously objected to any testimony concerning the condom on the
       ground that Officer Cates was deceased, and, therefore, any testimony concerning
       Cates’s statements regarding the condom denied him his right to confrontation.
       Appellant also objected to admission of the condom and to any discussion of DNA
       results from the condom on the basis that, because Officer Cates was unavailable,
       the State did not sufficiently establish the first link in the chain of custody.
                                          16
also testified regarding the procedures used by HPD officers for submitting items

of evidence to the property room for storage and lab testing.

      Officer Null testified that Monique Johnson, a very good friend of

Barnum’s, had a physically abusive husband, and Johnson would sometimes stay

with Barnum at her apartment. He stated that Johnson’s husband, Shun Minor,

“would go around and threaten friends and family trying to find out where

[Johnson] was.” Due to his violent behavior and tendency to threaten those with

whom Johnson would seek refuge, Minor became a suspect in Barnum’s murder.

Minor also owned a .380 caliber handgun, which matched the caliber of the shell

casing found at the murder scene.6 Although Null testified that Minor was his

“best suspect,” he never arrested Minor because he “didn’t have enough [evidence]

to arrest him on [Barnum’s] murder.”

      Jennifer Otto, who formerly worked at IdentiGene as a forensic DNA

analyst, testified that she performed a DNA analysis on the condom recovered

from Barnum’s sheets. Otto testified that she compared the DNA profile from the

condom to appellant’s known DNA profile generated from his buccal swab, and

she stated, “[Appellant] cannot be excluded as being a donor to the condom. And

the frequency of that DNA profile found on the condom from an unrelated

individual at random in the population is less than one in 76 quadrillion people.”

6
      Ballistics testing later revealed that Minor’s handgun was not used in Barnum’s
      murder.
                                         17
Otto also stated that she “[could not] testify” if semen was present on the condom.

Otto acknowledged on cross-examination that she could not tell from her analyses

the age of the cells present on the condom, and, thus, she could not determine how

long the condom had been present in Barnum’s sheets.

      Adam Osani, who was in custody in the Harris County Jail from September

2007 through February 2008, testified concerning statements appellant made while

in jail awaiting trial for the Barnum murder. Osani testified that while they were in

custody together, he did not have a friendly relationship with appellant, who was

considerably larger and who bullied him. Osani witnessed an incident between

appellant and another inmate named Marvin Paxton, who was in the neighboring

cell, late one night. According to Osani, appellant had been bullying him, and

Paxton told appellant to leave Osani alone. In response, appellant became angry,

walked over to the bars in between their cells, reached through the bars towards

Paxton, and told him, “Bitch, I’ll kill you like I did those other two bitches.”

      Osani also testified that, later, he and another inmate were discussing how

Osani had once visited the Harris County Medical Examiner’s office with a friend

who worked there. Appellant overheard this conversation and “started being really

nice to [Osani].” Appellant asked Osani if he really had a friend who worked in

the medical examiner’s office, and, when Osani responded that he did, appellant

asked, “Let’s just say, hypothetically, if somebody needed to collect DNA

                                          18
evidence, would your friend be able to do that?” Appellant indicated that Osani

“would be paid really handsomely,” and he mentioned Fort Bend County and

asked if Osani’s friend had “jurisdiction” to collect DNA evidence from a body.

      Marvin Paxton, who had two pending aggravated robbery cases at the time

of appellant’s trial, testified that he has been in custody in the Harris County Jail

since April 2007. He acknowledged that he was subsequently diagnosed with

paranoid schizophrenia and bipolar disorder and that he takes medication for both

of these disorders.    Paxton testified that, in December 2007, appellant, who

routinely bullied Osani, again teased Osani, and Paxton intervened on Osani’s

behalf. According to Paxton, appellant lost his temper, jumped up, grabbed at

Paxton through the bars, and told him to “shut [his] f——– mouth before I kill you

like I did those two bitches.”

      At a later date, appellant and Paxton had another conversation and appellant

apologized for the earlier incident.     During this conversation, Paxton asked

appellant if he was “for real” or if he was “just trying to scare” Paxton. Appellant

responded, “Oh, yeah, I did it.” Paxton testified that appellant said that “he killed

those two females, he lost his cool and he killed them. . . . He went to jail, he

bonded out, and it was like [a] $250,000 bond.” Appellant did not provide any

details regarding the victim’s names or where the offenses occurred. When asked

by the State where appellant had made bond, Paxton testified that he could not

                                         19
remember, but that it was either Fort Bend or Montgomery County. Paxton also

testified that when appellant said “and I killed them,” he made a strangulation

gesture. Appellant did not say that he strangled anyone, but that was how Paxton

interpreted the gesture.    Regarding the second murder, Paxton testified that

appellant said “he lost control again and he did it again.” Appellant also indicated

that he had had sex with both women, but he did not indicate when sex happened

relative to the murders. Paxton believed that appellant was telling the truth about

his involvement in those two offenses.

      Appellant testified that he first met Barnum at a party around 1990 and that

he would flirt with Barnum, although she did not reciprocate his interest. In late

February 1994, appellant’s girlfriend and Barnum both worked at the same topless

club, and, on one occasion, appellant gave Barnum a ride home. Several weeks

later, in late March 1994, appellant went to the club to pick up his girlfriend, with

whom he had been having relationship troubles, and he again encountered Barnum

and gave her a ride home. At Barnum’s apartment, the two of them smoked

marijuana and ended up having sex. Appellant testified that he used a condom,

although he did not remember what happened to it afterwards. He stated that

Barnum’s apartment was “a mess.” On cross-examination, appellant testified that

he only had sex with Barnum on this one occasion, two months before Barnum was

murdered.

                                         20
      After he was arrested for the Wildman murder, appellant told officers that he

did not know “Kimberly Wildman,” but, at his bond reduction hearing several days

later, he admitted that he had had a sexual encounter with Wildman. While out on

bond, he was arrested for the Barnum murder on December 1, 2006. In his initial

interview, he did not tell the investigating officers that he had known Barnum

because “[he] didn’t know who Edwina Barnum was.”

      Appellant testified that while he was in the Harris County Jail, he stayed

away from Paxton because he “was sort of crazy.” He testified that he never

threatened Paxton and he never had a conversation with Paxton about killing two

women while out on bond. He further testified that he never had a conversation

with Osani concerning removing evidence from the medical examiner’s office.

      C.     Procedural Background

      Appellant was arrested for the Wildman murder on May 2, 2006. Shortly

after his arrest, he posted a $250,000 bond. He was not indicted for this offense

until October 26, 2009. During the interim time period, appellant was arrested for

the Barnum murder on December 1, 2006, and he remained incarcerated in the

Harris County Jail for this offense until his trial in this case.

      On January 25, 2010, defense counsel moved to dismiss the indictment in

the Wildman case due to a denial of appellant’s constitutional right to a speedy

trial. Over three years and five months elapsed between the date of appellant’s

                                            21
arrest and the date of his indictment in the Wildman case, and he contended that he

“ha[d] not committed any act or omission contributing to this delay.” Defense

counsel argued,

      For over 3 years, the State refused to seek indictment and discussed
      weakness[es] and problems in the death penalty capital case in Harris
      County [the Barnum case]. Harris County Prosecutors met with Fort
      Bend County Prosecutors to see [the] possibility of Fort Bend
      pursuing [the] non-death capital case against Defendant. The State in
      Harris County also was never ready for trial. Defendant requests that
      this cause be dismissed. Each time the case has been delayed, it has
      been delayed through the actions and inactions of the prosecuting
      attorney and the courts.

He argued that the delay was prejudicial because appellant had suffered

“oppressive pre-trial incarceration, as well as much anxiety and concern regarding

the outcome to the trial herein.” He also argued that he “has suffered in his ability

to present his case in that it is difficult to locate witnesses or for witnesses to

accurately remember facts.”

      On March 5, 2010, the trial court held a hearing concerning appellant’s

speedy trial motion, and both the prosecutor and defense counsel testified at this

hearing.7 Defense counsel testified that he first asserted appellant’s right to a

speedy trial and moved to dismiss in March 2007, ten months after appellant was


7
      At this hearing, the trial court took judicial notice of the file concerning
      appellant’s previous habeas proceeding which related to this charge but had a
      different cause number. Under that cause number, defense counsel had apparently
      filed at least two motions to dismiss at a prior time. These motions are not
      contained in the record in this case.
                                         22
arrested with no indictment pending. The trial court apparently denied this motion,

relying on an affidavit from a Fort Bend County assistant district attorney who

averred that his office was waiting to indict appellant in the Wildman case until

after the Harris County District Attorney’s Office determined whether it was going

to seek the death penalty in the Barnum case. Defense counsel testified that he

filed a second motion to dismiss in October 2008, and, at that time, the same

assistant district attorney responded that he was still waiting on the State in the

Harris County case. Defense counsel alleged that this response from the assistant

district attorney was misleading because a Harris County prosecutor had already

informed him that the State was seeking the death penalty in the Barnum case, and

that case had an initial trial setting scheduled for September 2008.        Counsel

testified that, in July 2009, the Harris County District Attorney’s Office asked the

Fort Bend prosecutors to proceed with the Wildman case first. Appellant was then

indicted in October 2009, more than three years after his arrest. Defense counsel

testified that appellant has suffered “terrible emotional strain and harm” and that,

in addition to the fact that this is a cold case, the pre-indictment delay has caused

“three more years of people’s memories fading, witnesses, a possibility of finding

them growing even more sparse and making [the case] far more difficult to

defend.”




                                         23
      The prosecutor testified that appellant posted bond in the Wildman case,

although he was then incarcerated in Harris County for the Barnum case. He also

testified that he was not assigned to the case until August 2009. He acknowledged

that the agreement with Harris County to let that case proceed first “would not

have prevented [the previous assigned Fort Bend County prosecutor] from getting

an indictment” in the Wildman case, but he did not think that appellant’s trial

would have occurred sooner, because, at the time, the two district attorney’s offices

had agreed to let Harris County try the Barnum case first.

      The trial court ultimately denied appellant’s motion to dismiss for lack of a

speedy trial.

      During the charge conference, defense counsel requested that three

instructions concerning third-party culpability be included in the written jury

charge. One of these instructions stated:

      You have heard from the evidence that a person other than [the]
      defendant committed the offense for which the defendant is charged.
      The defendant is not required to prove the other person’s guilt. It is
      the prosecution that has the burden of proving the defendant guilty
      beyond a reasonable doubt; therefore, the defendant is entitled to an
      acquittal.

      If you have a reasonable doubt as to the defendant’s guilt, evidence
      that another person committed the charged offense may by itself leave
      you with a reasonable doubt. If after considering all the evidence,
      including any evidence that another person committed the offense,
      you have a reasonable doubt that the defendant committed the offense,
      you must find the defendant not guilty.

                                            24
The other two requested instructions were substantially similar. The trial court

denied all three of these proposed instructions. The charge did, however, include

the following limiting instruction concerning the Barnum offense:

      You are instructed that if there is any testimony before you in this
      case regarding the defendant’s having committed offenses other than
      the offense alleged against him in the indictment in this case, you
      cannot consider said testimony for any purpose unless you find and
      believe beyond a reasonable doubt that the defendant committed such
      other offenses, if any were committed, and even then you may only
      consider the same in determining the identity or consent of the
      defendant [sic], if any, in connection with the offense, if any, alleged
      against him in the indictment in this case, and for no other purpose.

      During deliberations, the trial court received a letter from one of the jurors.

In this letter, which was also signed by the jury foreperson, the juror requested the

substitution of an alternate juror for deliberations. She stated,

      I have listened to all of the testimony and have seen all of the
      evidence, and my mind, heart, body, and soul ALL agree with the
      decision I have made. The problem is my decision differs from many
      of my fellow jurors and I am beginning to feel attacked to change my
      opinion. I am having headaches, stomach aches, and lack of sleep
      since this trial has begun. I don’t know how this process goes, but I
      don’t think I want to try to be persuaded to change my decision.

In response, defense counsel moved for a mistrial on the basis that the other jurors

were “coercing” this juror to change her decision.

      The trial court took note of the juror’s statement that she did not want to “try

to be persuaded to change [her] decision” and stated that “the entirety of jury

deliberation is an exchange of opinions and ideas and considerations in an effort to

                                          25
see if [the jury] can achieve a common decision.” The court denied the motion for

mistrial and sent the following response to the jury: “The law does not allow for

jury substitution in such a situation. Please continue your deliberations.”

      Several hours later, the jury reached a verdict and found appellant guilty of

capital murder. Because the State did not seek the death penalty, the trial court

automatically assessed punishment at confinement for life.

                               Sufficiency of the Evidence

      In his seventh issue, appellant contends that the State failed to prove that he

caused Wildman’s death during the commission of either aggravated sexual assault

or burglary of a habitation.

      A.     Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact

finder could have found the essential elements of the offense beyond a reasonable

doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979);

Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that

Jackson standard is only standard to use when determining sufficiency of

evidence). Our review of “all of the evidence” includes evidence that was properly

and improperly admitted. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (“When

                                           26
conducting a sufficiency review, we consider all the evidence admitted, whether

proper or improper.”).

      The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Bartlett v. State, 270

S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the

facts and reject another, and it may reject any part of a witness’s testimony. See

Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson

v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d)

(stating jury can choose to disbelieve witness even when witness’s testimony is

uncontradicted).   We may not re-evaluate the weight and credibility of the

evidence or substitute our judgment for that of the fact finder. Williams v. State,

235 S.W.3d 742, 750 (Tex. Crim. App. 2007).            We afford almost complete

deference to the jury’s determinations of credibility. See Lancon v. State, 253

S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the

evidence in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim.

App. 2000); see also Clayton, 235 S.W.3d at 778 (“When the record supports

conflicting inferences, we presume that the factfinder resolved the conflicts in

favor of the prosecution and therefore defer to that determination.”).




                                         27
      B.     Capital Murder

      To establish that appellant committed capital murder in the Wildman case,

the State had to prove that appellant intentionally committed the murder in the

course of committing or attempting to commit (1) aggravated sexual assault of

Wildman or (2) burglary of Wildman’s habitation. See TEX. PENAL CODE ANN.

§ 19.03(a)(2) (Vernon Supp. 2011). A person commits aggravated sexual assault

when the person intentionally or knowingly causes the penetration of the sexual

organ of another person by any means, without that person’s consent, and causes

serious bodily injury.    Id. §§ 22.011(a)(1) (Vernon 2011), 22.021(a)(1)(A)(i),

22.021(a)(2)(A)(i) (Vernon Supp. 2011). Sexual assault is without the consent of

the other person if “the actor compels the other person to submit or participate by

the use of physical force or violence.” Id. § 22.011(b)(1); see also id. § 22.021(c)

(“An aggravated sexual assault under this section is without the consent of the

other person if the aggravated sexual assault occurs under the same circumstances

listed in Section 22.011(b).”).

      A person commits the offense of burglary if, without the effective consent of

the owner, he enters a habitation and commits or attempts to commit a felony,

theft, or an assault.    Id. § 30.02(a)(3) (Vernon 2011).     In a capital murder

prosecution, the requirement that the defendant commit a felony is satisfied by the

actual murder of the victim. Matamoros v. State, 901 S.W.2d 470, 474 (Tex. Crim.

                                        28
App. 1995). Furthermore, when the indictment lists more than one predicate

felony in a capital murder prosecution, the evidence “need only be sufficient to

establish one of the underlying felonies in the indictment.” Id. Thus, if the

evidence is sufficient to establish the elements of burglary, we need not determine

whether the evidence is also sufficient to establish the elements of aggravated

sexual assault. See id.; see also McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim.

App. 1997) (“When a general verdict is returned and the evidence is sufficient to

support a finding of guilt under any of the paragraph allegations submitted, the

verdict will be upheld.”).

      Here, Officer Weathers testified that he saw that a dining-room window had

two holes punched in the glass near the lock and that there was broken glass on the

ground. He opined that this was a common method for burglars to use to enter a

house without breaking an entire window. Detective Echols agreed that this was a

“fairly common” method of entry, and he further testified that although the dining-

room window screen “looked intact,” it was not properly affixed.

      Upon his arrest for Wildman’s murder, appellant initially denied knowing

Wildman. He later acknowledged that he was present in Wildman’s home on the

night of her murder, although he testified that he was present several hours before

she died and that they engaged in consensual sex. He denied being present at the

time of her murder, and both his mother and his brother testified that they did not

                                        29
hear appellant leave the house that evening. The jury, however, was not required

to believe this testimony, and we defer to the jury’s credibility determinations. See

Lancon, 253 S.W.3d at 705.

      The State presented evidence that appellant admitted on three different

occasions that he killed Wildman. He made his first admission on the night of the

murder to Brian and Delores Gable, admitting, while standing in their driveway

while police were still at Wildman’s house, that he “got into a scuffle,” and,

although he did not mean to do so, he killed Wildman. According to Delores

Gable, at Brian’s request for clarification, appellant pointed to Wildman’s house

and said that he was referring to “the white lady.” Appellant’s second admission

occurred while he was in the Harris County Jail in 2007 awaiting trial on the

Barnum murder. Late one evening, after Marvin Paxton told appellant to stop

teasing Adam Osani, appellant rushed to the bars in between his cell and Paxton’s

and told him to “shut [his] f——– mouth before I kill you like I did those two

bitches.” At a later date, Paxton had a conversation with appellant, and he asked

appellant whether his earlier admission was true.         Appellant replied in the

affirmative and stated that he “lost his cool” and killed two women, indicating that

one of the women lived in either Fort Bend or Montgomery County. Appellant

told Paxton that he had had sex with both of the victims, although he did not

mention when he had sex with the women relative to their deaths.

                                         30
      Osani also testified that appellant overheard a conversation he had with

another inmate concerning his visit with a friend who worked at the Harris County

Medical Examiner’s Office. Appellant, who had previously bullied Osani, started

being much more friendly and asked Osani several “hypothetical” questions. He

asked, “Let’s just say, hypothetically, if somebody needed to collect DNA

evidence, would your friend be able to do that?” Appellant asked if Osani’s friend

had “jurisdiction” in Fort Bend County, and he indicated that if Osani and his

friend could help collect DNA evidence from a body, Osani would be paid “really

handsomely.”

      The State therefore presented evidence that appellant entered Wildman’s

house without her consent, had sex with her, and fatally stabbed her multiple times.

Viewing the evidence in the light most favorable to the verdict, we conclude that a

rational factfinder could have found the essential elements of capital murder—that

appellant murdered Wildman in the course of committing burglary—beyond a

reasonable doubt.

      We overrule appellant’s seventh issue.

                      Dismissal for Lack of a Speedy Trial

      In his fifth issue, appellant contends that the trial court erred in denying his

motion to dismiss the indictment for lack of a speedy trial because the State did not




                                         31
indict him for Wildman’s murder until nearly three and a half years after he was

arrested.

      A.     The Right to a Speedy Trial

      The Sixth Amendment to the United States Constitution guarantees an

accused the right to a speedy trial. U.S. CONST. amend. VI; Barker v. Wingo, 407

U.S. 514, 515, 92 S. Ct. 2182, 2184 (1972); Cantu v. State, 253 S.W.3d 273, 280

(Tex. Crim. App. 2008). This right attaches once a person becomes an accused;

that is, once he is either arrested or charged. Cantu, 253 S.W.3d at 280. United

States Supreme Court precedent requires us to analyze constitutional speedy-trial

claims “on an ad hoc basis” by weighing and balancing the four factors enumerated

in Barker: (1) the length of the delay; (2) the reason for the delay; (3) the assertion

of the right; and (4) the prejudice to the accused. Barker, 407 U.S. at 530–33, 92

S. Ct. at 2192–93; Cantu, 253 S.W.3d at 280. Although the State bears the burden

of justifying the length of delay, the defendant bears the burden of proving that he

asserted the right and of showing prejudice. Cantu, 253 S.W.3d at 280. The Court

of Criminal Appeals has held that the defendant’s burden “‘varies inversely’ with

the State’s degree of culpability for the delay”; thus, “the greater the State’s bad

faith or official negligence and the longer its actions delay a trial, the less a

defendant must show actual prejudice or prove diligence in asserting his right to a




                                          32
speedy trial.” Id. at 280–81 (quoting Robinson v. Whitley, 2 F.3d 562, 570 (5th

Cir. 1993)).

      The Barker analysis is “triggered” by a delay unreasonable enough to be

considered “presumptively prejudicial.” Id. at 281. There is no set time period

that triggers the analysis. Id. Once the Barker analysis is triggered, we first weigh

the strength of each Barker factor and then balance the weight of the factors “in

light of ‘the conduct of both the prosecution and the defendant.’” Id. (quoting

Zamorano v. State, 84 S.W.3d 643, 648 (Tex. Crim. App. 2002)). No one factor is

“either a necessary or sufficient condition to the finding of a deprivation of the

right of speedy trial.” Barker, 407 U.S. at 533, 92 S. Ct. at 2193. Instead, the four

factors are related, and we consider them together along with “such other

circumstances as may be relevant.” Id.; Cantu, 253 S.W.3d at 281 (“As no factor

possesses ‘talismanic qualities,’ courts must engage ‘in a difficult and sensitive

balancing process’ in each individual case.”).

      We dismiss the charging instrument with prejudice only upon finding that

the defendant’s speedy trial right was “actually violated.” Cantu, 253 S.W.3d at

281. We must “apply the Barker balancing test with common sense and sensitivity

to ensure that charges are dismissed only when the evidence shows that a

defendant’s actual and asserted interest in a speedy trial has been infringed.” Id.




                                         33
      B.     Standard of Review

      In reviewing the trial court’s ruling on a defendant’s speedy trial claim, we

apply a bifurcated standard of review. Id. at 282; Zamorano, 84 S.W.3d at 648.

We review the “factual components” for an abuse of discretion and the “legal

components” de novo. Cantu, 253 S.W.3d at 282; Zamorano, 84 S.W.3d at 648.

Reviewing the individual Barker factors “necessarily involves fact determinations

and legal conclusions,” but the balancing test “as a whole” is a “purely legal

question.” Cantu, 253 S.W.3d at 282. We defer not only to the trial court’s

resolution of disputed facts, but also to its right to draw reasonable inferences from

those facts. Id. (citing Kelly v. State, 163 S.W.3d 722, 726–27 (Tex. Crim. App.

2005)). When assessing the evidence presented at a speedy trial hearing, the trial

court may completely disregard a witness’s testimony based on credibility and

demeanor evaluations, even if the testimony is uncontradicted, and it may

disbelieve any evidence as long as there is a reasonable and articulable basis for

doing so. Id. (citing Kelly, 163 S.W.3d at 727–28). On appeal, we must view the

evidence in the light most favorable to the trial court’s ultimate ruling. Id. (citing

Zamorano, 84 S.W.3d at 648).




                                         34
      C.     Analysis

             1.    Length of the Delay

      The length of the delay between the defendant’s arrest and his indictment

acts as a “triggering mechanism,” for until the delay is “presumptively prejudicial,”

there is no necessity to inquire into the other Barker factors. Barker, 407 U.S. at

530, 92 S. Ct. at 2192; Zamorano, 84 S.W.3d at 648. The length of delay “that

will provoke such an inquiry is necessarily dependent on the peculiar

circumstances of the case.” Barker, 407 U.S. at 530–31, 92 S. Ct. at 2192. If the

accused demonstrates that the delay qualifies as “presumptively prejudicial,” we

must then consider “the extent to which that delay stretches beyond the bare

minimum needed to trigger judicial examination of the claim.” Zamorano, 84

S.W.3d at 649. The presumption that pretrial delay has prejudiced the accused

“intensifies over time.” Id. Thus, “any speedy trial analysis depends first upon

whether the delay is more than ‘ordinary’; if so, the longer the delay beyond that

which is ordinary, the more prejudicial that delay is to the defendant.” Id.

      In this case, appellant was arrested for the Wildman murder on May 2, 2006,

and he was not indicted until October 26, 2009, a delay of three years and five

months. Appellant was released on bond in the Wildman case shortly after he was

arrested, and he remained at liberty until he was arrested on December 2, 2006, for

the Barnum murder. Appellant remained incarcerated for the Barnum murder until

                                         35
the time of his trial in the Wildman case.        Appellant moved to dismiss the

indictment in the Wildman case on January 25, 2010, and the trial court heard the

motion on March 5, 2010.

      The State concedes that the three-year-and-ten month delay between

appellant’s arrest and the date the trial court heard his motion to dismiss is

sufficiently lengthy to trigger our analysis of the other Barker factors. We agree.

Because the length of the delay “stretched well beyond the bare minimum needed

to trigger judicial examination of the claim, this factor . . . weighs heavily against

the State.” See id. (holding two-year-ten-month delay between arrest and hearing

on speedy trial motion sufficiently lengthy to trigger Barker analysis).

             2.    Reasons for the Delay

      Related to the length of the delay is the reason that the government assigns

to justify the delay. Id. (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2182). The

State bears the burden of justifying the length of the delay. Cantu, 253 S.W.3d at

280. A “deliberate attempt” on the part of the State to delay the trial to hamper the

defense weighs heavily against the government, “while a more neutral reason such

as negligence or overcrowded courts should be weighted less heavily but

nevertheless should be considered since the ultimate responsibility for such

circumstances must rest with the government rather than with the defendant.”

Zamorano, 84 S.W.3d at 649 (quoting Barker, 407 U.S. at 531, 92 S. Ct. at 2182).

                                         36
The fact that the defendant is being prosecuted on other charges constitutes a valid

reason for a delay in bringing him to trial on the charged offense at issue. Easley v.

State, 564 S.W.2d 742, 745 (Tex. Crim. App. 1978); McIntosh v. State, 307

S.W.3d 360, 367 (Tex. App.—San Antonio 2009, pet. ref’d) (“The prosecution of

the defendant on other charges may be a valid reason for a delay in bringing him to

trial.”); Thompson v. State, 983 S.W.2d 780, 783 (Tex. App.—El Paso 1998, pet.

ref’d) (“Prosecution of the defendant on other charges is a valid reason for delay

and does not weigh against the State so long as the amount of delay is

appropriate.”). To sustain its burden on this factor, however, the State must offer

argument and proof that the defendant was being prosecuted on other charges.

McIntosh, 307 S.W.3d at 367; see also Cerf v. State, No. 07-10-00451-CR, 2012

WL 1252963, at *7 (Tex. App.—Amarillo Apr. 12, 2012, no pet. h.) (“[D]uring

some of the delay at issue here, appellant was preparing for earlier filed charges in

Dawson County. So, although the State’s argument and proof on that issue is not

overwhelming, some of the delay could be attributable to that unrelated

proceeding.”).

      At the hearing on appellant’s motion to dismiss, the State asserted that the

pre-indictment delay was due to an agreement with Harris County, whereby the

respective district attorneys’ offices agreed that Harris County would proceed first

on the Barnum case, in which it was potentially seeking the death penalty, and Fort

                                         37
Bend County would wait to prosecute the Wildman case, which was not a death

penalty case. According to the State, on July 23, 2009, Harris County ultimately

requested, due to problems with its case, that Fort Bend County prosecute the

Wildman case first. Fort Bend County then assigned a new prosecutor to the

Wildman case, and, after he familiarized himself with the case, he obtained an

indictment in October 2009. The State conceded that its agreement with Harris

County did not affect its ability to obtain a formal indictment against appellant.

      The State thus asserted a valid reason for its delay in bringing appellant to

trial on the Wildman case:         due to the pending charges in two different

jurisdictions, the Fort Bend County District Attorney’s Office and the Harris

County District Attorney’s Office had an agreement that Harris County would

prosecute the Barnum murder first. It was only after Harris County re-evaluated

the Barnum case and determined that it had problems with the case that the

respective district attorneys’ offices agreed that Fort Bend County would prosecute

the Wildman case. The State obtained an indictment in the Wildman case within

three months of this decision. Prosecution of the defendant for unrelated charges

in a different jurisdiction constitutes a valid reason for delay. See Easley, 564

S.W.2d at 745; McIntosh, 307 S.W.3d at 367; Thompson, 983 S.W.2d at 783. This

factor, therefore, is neutral in the balancing analysis.




                                           38
             3.     Assertion of the Right

      Although it is the State’s duty to bring the defendant to trial, the defendant

does have the responsibility to assert his right to a speedy trial. Cantu, 253 S.W.3d

at 282; Zamorano, 84 S.W.3d at 651. “Whether and how a defendant asserts this

right is closely related to the other three factors because the strength of his efforts

will be shaped by them.” Cantu, 253 S.W.3d at 282–83; Zamorano, 84 S.W.3d at

651. Therefore, the defendant’s assertion of his speedy-trial right, or his failure to

assert it, “is entitled to strong evidentiary weight in determining whether the

defendant is being deprived of the right.” Cantu, 253 S.W.3d at 283; Zamorano,

84 S.W.3d at 651 (“Conversely, a failure to assert the right makes it difficult for a

defendant to prove that he was denied a speedy trial.”). Filing for dismissal of the

indictment instead of moving for a speedy trial generally weakens the defendant’s

claim “because it shows a desire to have no trial instead of a speedy one.” Cantu,

253 S.W.3d at 283. If the defendant

      fails to first seek a speedy trial before seeking dismissal of the
      charges, he should provide cogent reasons for this failure. Repeated
      requests for a speedy trial weigh heavily in favor of the defendant,
      while the failure to make such requests supports an inference that the
      defendant does not really want a trial, he wants only a dismissal.

Id.

      “Although one cannot file a motion for a speedy trial until formal charges

are made, the right to one can be asserted in other ways.” Id. Invocation of the

                                          39
speedy-trial right “need not await indictment, information, or other formal charge.”

Dillingham v. United States, 423 U.S. 64, 65, 96 S. Ct. 303, 304 (1975); Cantu,

253 S.W.3d at 284 (“Because appellant never asked for a speedy trial—he asked

only for a dismissal—it was incumbent upon him to show that he had tried to get

the case into court so that he could go to trial in a timely manner.”). An accused

who has been arrested but not charged has two choices: (1) wait until he is

charged, file a motion requesting a speedy trial, and, if the trial court does not grant

this motion, then file a motion to dismiss “because he has diligently sought what he

is entitled to—a speedy trial,” or (2) wait until he is charged and file a motion to

dismiss “if he can show that he diligently tried to move the case into court before

formal charges were filed.” Cantu, 253 S.W.3d at 284.

      Defense counsel first moved to dismiss in March 2007, and he then filed an

amended motion to dismiss in October 2008.8 At the time of these first two

motions, no indictment had been returned in the Wildman case. Defense counsel

filed the third motion to dismiss, the subject of the speedy-trial hearing, in January

2010, three months after the State indicted appellant. All three of these motions

sought dismissal of the charges against him; appellant never demanded a speedy

trial. Aside from the first two motions to dismiss, defense counsel did not testify


8
      Neither of these motions are included in the record. Thus, the only evidence that
      defense counsel filed these two motions is counsel’s testimony to this effect at the
      speedy-trial hearing.
                                           40
that he took any other actions to try “to move the case into court before formal

charges were filed.” Id.

      Appellant only sought dismissal of the charges against him, instead of

demanding a speedy trial, and he presented no evidence that he or his counsel

made any attempts to “diligently [try] to move the case into court before formal

charges were filed.” Id. These facts suggest that appellant “[did] not really want a

trial, he [wanted] only a dismissal.” Id. at 283. We conclude that this factor

weighs against appellant.

            4.     Prejudice Caused by the Delay

      When we analyze the fourth factor—the extent to which the delay has

prejudiced the defendant—we do so in light of the defendant’s interests that the

speedy-trial right was designed to protect:     (1) to prevent oppressive pretrial

incarceration; (2) to minimize the accused’s anxiety and concern; and (3) to limit

the possibility that the accused’s defense will be impaired. Id. at 285; Zamorano,

84 S.W.3d at 652. The last type of prejudice is the most serious “because the

inability of a defendant adequately to prepare his case skews the fairness of the

entire system.” Cantu, 253 S.W.3d at 285 (quoting Dragoo v. State, 96 S.W.3d

308, 316 (Tex. Crim. App. 2003)); Zamorano, 84 S.W.3d at 652 (“[A] defendant’s

claim of a speedy trial violation need not necessarily demonstrate prejudice to his

ability to present defensive matters.”). Evidence of the defendant’s generalized

                                        41
anxiety, although relevant, “is not sufficient proof of prejudice under the Barker

test, especially when it is no greater anxiety or concern beyond the level normally

associated with a criminal charge or investigation.” Cantu, 253 S.W.3d at 286.

      Appellant argues that “at least one key witness,” Officer Cates, died prior to

trial and thus his testimony, needed to establish the chain of custody of the condom

found at the Barnum murder scene, was unavailable.          Appellant provided no

evidence of when Officer Cates died, and the record does not reflect whether Cates

died during the time period between appellant’s arrest and indictment. He does not

explain how the death of Officer Cates prejudiced him in any way, rather than

benefitting him.

      Although appellant argues that he “has worry [sic] over lapsed memories of

witnesses,” this prosecution was of a cold-case murder that occurred sixteen years

before appellant’s arrest.    Memory loss was therefore a potential problem

regardless of how quickly the State indicted and brought appellant to trial after his

arrest. At the hearing on the motion to dismiss, defense counsel testified that the

post-arrest delay has caused “three more years of people’s memories fading,

witnesses, a possibility of finding them growing even more sparse and making it

far more difficult to defend.” Defense counsel did not, however, identify specific

problems due to faded memories or specific witnesses, other than Officer Cates,




                                         42
who were unavailable due to the delay.         Nor does he indicate how he was

prejudiced by the faded memories of any witness. See id. at 285.

       Regarding appellant’s anxiety and concern during the pre-indictment delay,

appellant himself did not testify during the hearing. Instead, defense counsel

testified:

       I’ve dealt with him and met with him, talked with him many times.
       The emotional strain of being under charges in a county and you can’t
       even get an indictment and get into a courtroom to proceed for your
       innocence, is a terrible emotional strain and harm to this defendant.

Defense counsel presented no further testimony regarding appellant’s anxiety—

such as anxiety-induced illnesses or other physical manifestations—or other

hardships caused by the delay. Appellant thus presented no evidence that he

suffered from any anxiety greater than that normally experienced by defendants

facing criminal prosecution. This factor, therefore, weighs against dismissal of the

indictment.

              5.   Balancing of Barker Factors

       The delay in this case between appellant’s arrest and his indictment—three

years and five months—was presumptively prejudicial and weighs in favor of

dismissal on speedy-trial grounds.       The State’s reason for the delay—the

agreement between the Fort Bend and Harris County District Attorneys’ Offices—

is neutral in the analysis, but the remaining two factors weigh against dismissal.



                                         43
      The State asserted a valid reason for the delay in bringing appellant to trial

on the Wildman case: the Fort Bend County District Attorney’s Office had an

agreement to let the Harris County District Attorney’s Office prosecute appellant

on the Barnum murder first. Once Harris County determined that it had problems

with the Barnum case, it agreed to let Fort Bend County’s prosecution of the

Wildman case proceed, and the State obtained an indictment on the Wildman case

within three months.

      Appellant moved on three occasions for dismissal of the indictment, but he

never asserted his right to a speedy trial by actually requesting or demanding a

trial. This conduct indicates that what appellant truly sought was dismissal of the

charges and not a trial. See id. at 283 (“[T]he failure to make such requests [for a

speedy trial] supports an inference that the defendant does not really want a trial,

he wants only a dismissal.”).          Moreover, appellant presented no evidence

concerning the efforts his counsel took to “move the case into court before formal

charges were filed.” See id. at 284.

      Appellant was not incarcerated for the Wildman case during the time period

in between his initial arrest and the return of the indictment, and he presented no

evidence that he suffered from anxiety above and “beyond the level normally

associated with a criminal charge or investigation.” See id. at 286. Although

Officer Cates died during the interim time period between the Barnum murder in

                                          44
1994 and the prosecution of the Wildman case in 2010, there is no evidence that he

died during the time period after appellant was arrested for the Wildman murder

but before he was indicted, nor is there any evidence that Officer Cates’s death

hindered appellant’s defense. Appellant also presented no evidence concerning

specific memory problems relating to specific witnesses, nor did he address how

any memory problems that did exist were the result of the pre-indictment delay

instead of the fact that this was a cold-case prosecution of a nearly twenty-year-old

crime. Finally, appellant makes no showing that he was prejudiced by the fading

memories of any witness.

      We therefore conclude that, when balancing the four Barker factors,

appellant has not demonstrated that the trial court erred when it denied his motion

to dismiss the indictment on speedy trial grounds.

      We overrule appellant’s fifth issue.

                        Admission of Extraneous Offense

      In his first and second issues, appellant contends that the trial court

erroneously admitted evidence of the extraneous Barnum murder in violation of

Texas Rules of Evidence 404(b) and 403. In his third and fourth issues, appellant

contends that the trial court erroneously admitted evidence of the terroristic threat

made to Paxton, which referenced the Barnum murder, in violation of Rules 404(b)

and 403.

                                         45
      A.     Standard of Review

      We review a trial court’s decision to admit evidence concerning an

extraneous offense for an abuse of discretion. See Page v. State, 137 S.W.3d 75,

78 (Tex. Crim. App. 2004) (“A trial court’s Rule 404(b) ruling is reviewed under

an abuse of discretion standard.”); Jabari v. State, 273 S.W.3d 745, 751 (Tex.

App.—Houston [1st Dist.] 2008, no pet.). As long as the trial court’s ruling is

within the “zone of reasonable disagreement,” the court does not abuse its

discretion, and we will uphold the ruling. Jabari, 273 S.W.3d at 751; Thomas v.

State, 126 S.W.3d 138, 143 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d).

      B.     Admissibility under Rule 404(b)

      The general rule is that a defendant may not be tried for a collateral crime or

for being a criminal generally, which is why Rule 404(b) prohibits the admission

of an extraneous offense at trial to prove a defendant’s character or to show that the

defendant acted in conformity with that character. TEX. R. EVID. 404(b); Jabari,

273 S.W.3d at 751; Curtis v. State, 89 S.W.3d 163, 170 (Tex. App.—Fort Worth

2002, pet. ref’d). Extraneous offenses may, however, be admissible for other

purposes, such as to show motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident. TEX. R. EVID. 404(b);

Jabari, 273 S.W.3d at 751.




                                         46
             1.     Identity

      An extraneous offense may be admissible to prove identity only if the

identity of the perpetrator is at issue in the case. Page, 137 S.W.3d at 78 (“For

proof of identity to be a valid purpose, it must be an issue in the case.”); see also

Jabari, 273 S.W.3d at 751. Identity can be raised by cross-examination, such as

the impeachment of the identifying witness on a material detail of identification, or

by presenting an alibi defense. Page, 137 S.W.3d at 78; Jabari, 273 S.W.3d at

751; see also Hudson v. State, 112 S.W.3d 794, 801 (Tex. App.—Houston [14th

Dist.] 2003, pet. ref’d) (“In raising a defensive theory, a defendant opens the door

for the State to offer rebuttal testimony concerning an extraneous offense if the

extraneous offense has characteristics common with the offense for which the

defendant is being tried.”).

      Raising the issue of identity “does not automatically render evidence of an

extraneous offense admissible.” Jabari, 273 S.W.3d at 751 (citing Page v. State,

213 S.W.3d 332, 336 (Tex. Crim. App. 2006)). “When the extraneous offense is

introduced to prove identity by comparing common characteristics, it must be so

similar to the charged offense that the offenses illustrate the defendant’s

‘distinctive and idiosyncratic manner of committing criminal acts.’” Page, 213

S.W.3d at 336 (quoting Martin v. State, 173 S.W.3d 463, 468 (Tex. Crim. App.

2005)); see also Segundo v. State, 270 S.W.3d 79, 88 (Tex. Crim. App. 2008)

                                         47
(“Usually, it is the accretion of small, sometimes individually insignificant details

that marks each crime as the handiwork or modus operandi of a single

individual.”). Extraneous offense evidence is admissible to prove identity “when

the common characteristics of each offense are so unusual as to act as the

defendant’s ‘signature.’” Page, 213 S.W.3d at 336 (quoting Taylor v. State, 920

S.W.2d 319, 322 (Tex. Crim. App. 1996)); see also Russell v. State, 113 S.W.3d

530, 541 (Tex. App.—Fort Worth 2003, pet. ref’d) (“[T]o be admissible to show

identity, an extraneous offense must be so similar to the charged offense as to mark

the offenses as the defendant’s handiwork.”) (emphasis in original).             The

“signature” must be apparent from a comparison of the circumstances in both

cases. Page, 213 S.W.3d at 336 (citing Bishop v. State, 869 S.W.2d 342, 346 (Tex.

Crim. App. 1993)). “Without a high degree of similarity, the probative value of

the extraneous offense evidence is outweighed by its prejudicial effect.” Jabari,

273 S.W.3d at 752 (citing Bishop, 869 S.W.2d at 346). In reviewing the trial

court’s determination, we consider the specific characteristics of the offenses and

the time interval between them.        Id. (citing Thomas, 126 S.W.3d at 144).

“Sufficient similarity may be shown by proximity in time and place or by a

common mode of committing the offenses.” Id. (citing Lane v. State, 933 S.W.2d

504, 519 (Tex. Crim. App. 1996)) (emphasis in original).




                                         48
      Here, the State presented evidence that appellant knew both Wildman and

Barnum and that he had a friendly, or even flirtatious, relationship with both

women. Appellant acknowledged that he had sex with both women, and DNA

evidence revealed the presence of appellant’s DNA in Wildman’s vagina at the

time of her murder and in a condom located on Barnum’s bed on the night of her

murder. See Segundo, 270 S.W.3d at 89 (“DNA found in both murder victims

matched appellant’s DNA profile—it is as if appellant left his calling card in both

Vanessa and Maria or carved a ‘Z’ upon their foreheads as his unique signature.”).

Both Wildman and Barnum were single women who lived alone, and both women

were, or had an interest in being, topless dancers. In both instances, there was no

physical evidence of forcible, nonconsensual sex, but there was evidence of forced

entry into the victims’ homes. Both women were violently attacked at night, in

their bedrooms, possibly while on their beds, and there was evidence that both

women were restrained in some manner during the attack—officers discovered

blood and hair consistent with Wildman’s on a chain on her bed, and Barnum’s

hands were tied behind her back and she had a belt wrapped around her neck. Both

women suffered multiple fatal stab wounds.

      Appellant attempts to distinguish Segundo by pointing out that, in ruling that

the extraneous offense was admissible to prove identity, the Court of Criminal

Appeals found several similarities in the circumstances and manner of the victims’

                                        49
death in addition to the presence of the defendant’s DNA. See id. (“Second, the

similarities between the two offenses marked them as products of appellant’s

modus operandi: both victims were manually strangled; both had been raped

immediately before their deaths; their bodies were nude from the waist down;

appellant’s DNA was found in the vaginas of both victims. The similarities of

these details are sufficient to mark the two rape-murders as the handiwork of a

single person, appellant.”). Appellant identified several dissimilarities between

Wildman’s and Barnum’s murders that, he contends, renders the extraneous

Barnum murder inadmissible to show identity. Specifically, he points out that

Barnum’s murder occurred four years after Wildman’s; that Wildman was

Caucasian and Barnum was African-American; that Wildman was thirty-eight and

Barnum was twenty-three; that the women had different body sizes; that the

murders occurred in different parts of the greater-Houston area; that Barnum

suffered several different types of injuries in addition to being stabbed, while

Wildman was merely stabbed; that Wildman was found unclothed while Barnum

was fully dressed; and that appellant’s DNA was found in Wildman’s vagina but

was found in a condom located on Barnum’s bed.

      In Segundo, however, the Court of Criminal Appeals noted that

dissimilarities existed between the charged crime and the extraneous offense, but it

concluded that “[a]ll other dissimilarities between the offenses—years between the

                                        50
crimes, age of the victims, location, and so forth—are immaterial to the singular

relevant fact: appellant’s semen was deposited in [the victims’] vaginas at or near

the time of their strangulation deaths.” Id. at 89–90. Here, although there are

some differences in the surrounding circumstances and the ways in which

Wildman and Barnum were murdered, there are also enough similarities such that

the presence of appellant’s DNA at the murder scene, either in or close to the

victims’ bodies, is not the only “significant similarit[y]” that the two offenses have

in common.

      We hold that the trial court reasonably could have concluded that the

Barnum murder was sufficiently similar to the Wildman murder such that evidence

of the Barnum murder was admissible to prove identity in the Wildman case. We

therefore hold that the trial court did not abuse its discretion in admitting evidence

of the Barnum murder pursuant to Rule 404(b).

      We overrule appellant’s first issue.9

      C.     Admissibility under Rule 403

      In his second issue, appellant contends that, even if evidence of the Barnum

murder is admissible under Rule 404(b), the trial court abused its discretion in


9
      Because we conclude that the Barnum murder was sufficiently similar to the
      Wildman murder such that evidence of the Barnum murder was admissible to
      prove identity, we need not consider whether evidence of the Barnum murder was
      admissible to prove consent, which was raised by appellant in a sub-issue to his
      first issue.
                                         51
admitting the evidence because the probative value of the Barnum murder is

substantially outweighed by its prejudicial effect, and, therefore, the trial court

should have excluded the evidence pursuant to Rule 403.

      Even when the admission of extraneous offense evidence is permissible

under Rule 404(b), we must still determine whether the probative value of the

offense is substantially outweighed by the danger of unfair prejudice under Rule

403. TEX. R. EVID. 403; Jabari, 273 S.W.3d at 752; Blackwell v. State, 193

S.W.3d 1, 9 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). We consider the

following factors when conducting a Rule 403 analysis: (1) the strength of the

extraneous offense evidence to make a fact of consequence more or less probable;

(2) the potential of the extraneous offense to impress the jury in some irrational but

indelible way; (3) the time during trial that the State requires to develop evidence

of the extraneous misconduct; and (4) the need by the State for the extraneous

evidence. Blackwell, 193 S.W.3d at 9 (citing Wheeler v. State, 67 S.W.3d 879, 888

(Tex. Crim. App. 2002)).      We uphold the trial court’s ruling on a Rule 403

balancing test, whether explicit or implied, if it is within the zone of reasonable

disagreement. Jabari, 273 S.W.3d at 753.

      The first factor in the Rule 403 balancing analysis is the strength of the

extraneous offense evidence to make a fact of consequence more or less probable.

Blackwell, 193 S.W.3d at 15.       At trial, appellant disputed his identity as the

                                         52
murderer and raised an alibi defense, contending that, although he had consensual

sex with Wildman on the night of her murder, he was at his own house at the time

she was killed. The Barnum murder, which shares several characteristics with the

Wildman murder, most notably the presence of appellant’s DNA at the scene, “is

compelling as to the issue of identity” and is probative of appellant’s identity as the

perpetrator of Wildman’s murder. Jabari, 273 S.W.3d at 753; Blackwell, 193

S.W.3d at 15 (“The extraneous offense evidence was probative of appellant’s

intent to commit the sexual offense against J.H. by showing that appellant had a

similar sexual intent with K.S. and C.R. . . .”). Because this extraneous offense

evidence makes appellant’s identity as Wildman’s murderer more probable, this

factor “weighs strongly in favor of admissibility.” Blackwell, 193 S.W.3d at 15.

      The second factor requires that we examine the extraneous offense evidence

“for its potential to impress the jury in some irrational but indelible way,” such as

character conformity. Id. An impermissible inference of character conformity,

however, can be minimized by the use of a limiting instruction. Jabari, 273

S.W.3d at 753; Blackwell, 193 S.W.3d at 15 (“The trial court’s instructions to the

jury are a factor to consider in determining whether the jury considered the

extraneous-offense evidence improperly, i.e., as character conformity evidence, or

properly, as evidence to rebut a defensive theory or some other permissible reason

under rule 404(b).”). We must further consider the “emotional weight” of the

                                          53
extraneous offense evidence and whether that evidence was “graphic.” Blackwell,

193 S.W.3d at 17.

       Here, two officers described Barnum’s injuries, which were numerous and

severe, although they did not spend a large amount of their testimony dwelling on

the nature of Barnum’s injuries. The trial court admitted twenty-two pictures

relating to the Barnum murder, eleven of which showed Barnum’s body either at

the murder scene or at the medical examiner’s office. Although these pictures

depicted Barnum’s injuries, they were not “overly graphic,” and they contained

significantly less blood and gore than the pictures of the Wildman scene. See id.

In addition, these pictures were some evidence of the similarity in the modus

operandi of the attacks, which is highly probative. See Segundo, 270 S.W.3d at

89; see also TEX. R. EVID. 403 (“Although relevant, evidence may be excluded if

its probative value is substantially outweighed by the danger of unfair

prejudice . . . .”).

       Moreover, before the trial court allowed the State to present evidence of the

Barnum murder, the court gave the following limiting instruction to the jury:

       [W]e have another witness who also could give some testimony
       related to an extraneous offense. So, again, I want to advise you that
       this testimony is given for the limited purpose of establishing consent
       or identity, and you are not to consider it unless you believe beyond a
       reasonable doubt [that] the defendant was guilty of the offense
       mentioned.



                                         54
The trial court included a substantially similar instruction in the written charge.

These instructions thus informed the jury that it could consider the Barnum

evidence only for the purposes of establishing consent or identity, and not for

character-conformity purposes. See Blackwell, 193 S.W.3d at 17 (“The jury here

was therefore adequately apprised that it could rely on the extraneous offense

evidence solely for other purposes than character-conformity evidence.”); see also

Jabari, 273 S.W.3d at 753 (“Here, the trial court instructed the jurors to limit their

consideration of the extraneous offense evidence.”). This factor, therefore, weighs

in favor of admissibility.

      “The third factor evaluates the time during trial that the State required to

develop evidence of the extraneous misconduct.” Blackwell, 193 S.W.3d at 18.

Here, appellant’s trial lasted fourteen days. The jury heard seven days of evidence

pertaining solely to the Wildman murder. The State spent at least three full days

solely presenting evidence relating to the Barnum murder.              At least four

witnesses—appellant, Investigator Swainson, Osani, and Paxton—presented

testimony relevant to both the Wildman and the Barnum murders. Approximately

one-third of the trial, therefore, was spent developing testimony relevant to the

Barnum murder. We conclude that this factor weighs against admissibility of the

Barnum offense. See Newton v. State, 301 S.W.3d 315, 321 (Tex. App.—Waco

2009, pet. ref’d) (holding factor weighed in favor of exclusion of extraneous

                                         55
offense when evidence of extraneous offense amounted to approximately twenty-

seven percent of testimony at trial); Russell v. State, 113 S.W.3d 530, 546 (Tex.

App.—Fort Worth 2003, pet. ref’d) (holding same when evidence of extraneous

offense amounted to thirty percent of trial).

      The fourth factor examines the State’s need for the evidence. This factor

favors admissibility of the extraneous Barnum murder.             There were no

eyewitnesses to the Wildman murder, and, although appellant admitted that he was

present in Wildman’s home and had sex with her on the night of her murder, he

disputed the State’s theories that he sexually assaulted Wildman and that he was

present at the time of her murder. Appellant vigorously attacked the credibility of

Gable, Osani, and Paxton, all of whom claimed that appellant admitted his

involvement in the Wildman murder to them, and he presented alibi testimony

from his mother and younger brother. Appellant’s DNA at the Wildman scene

establishes that he was present in her house and that, at some point, he had sex

with Wildman, but it “does not directly identify him as [Wildman’s] attacker.”

Jabari, 273 S.W.3d at 753.

      When we consider all four factors together, only the third factor, the time

spent developing the evidence concerning the extraneous offense, weighs against

admissibility. We therefore conclude that the trial court was within the zone of

reasonable disagreement when it implicitly ruled that the probative value of the

                                          56
extraneous Barnum murder was not substantially outweighed by its prejudicial

effect. See Hammer v. State, 296 S.W.3d 555, 568 (Tex. Crim. App. 2009) (“[Rule

403] envisions exclusion of evidence only when there is a ‘clear disparity between

the degree of prejudice of the offered evidence and its probative value.’”) (quoting

Conner v. State, 67 S.W.3d 192, 202 (Tex. Crim. App. 2001)). We hold that the

trial court did not abuse its discretion when it did not exclude evidence of the

Barnum murder pursuant to Rule 403.

      We overrule appellant’s second issue.

      D.    Admissibility of Terroristic Threat to Paxton

      In his third and fourth issues, appellant contends that “[t]he trial court erred

in allowing evidence of extraneous offenses of murder and terroristic threat told by

Adam Osani and Marvin Paxton in violation of” Rules 404(b) and 403. Appellant

argues that there is no way to determine to whom appellant was referring in his

terroristic threat—“Bitch, I’ll kill you like I did those other two bitches”—and

there is no way for the State to prove appellant’s guilt beyond a reasonable doubt.

He notes that Osani’s and Paxton’s testimony was contradictory and “contrary to

the counties and time involved in [the] Wildman and Barnum cases.”

      The State did not offer Osani’s and Paxton’s testimony as evidence of an

extraneous offense separate and apart from the Barnum offense; instead, the State

offered this evidence as proof that appellant committed both the Wildman murder

                                         57
and the extraneous Barnum murder. This statement is an admission by a party-

opponent, supporting the allegation that appellant killed Wildman and Barnum.

See TEX. R. EVID. 801(e)(2); Trevino v. State, 991 S.W.2d 849, 853 (Tex. Crim.

App. 1999) (“Rule 801(e)(2)(A) plainly and unequivocally states that a criminal

defendant’s own statements, when being offered against him, are not hearsay.”);

see also Drone v. State, 906 S.W.2d 608, 611 (Tex. App.—Austin 1995, pet. ref’d)

(“[A]n inmate in the Milam County jail[] testified that he heard an argument

between appellant and another inmate during which appellant said, ‘I will kill you,

too.’ . . . [T]his was an admission by [a] party-opponent . . . .”). This is evidence

that the jury could consider when determining whether the State proved, beyond a

reasonable doubt, that appellant killed Wildman and committed the extraneous

Barnum murder. It was within the province of the jury to determine Osani’s and

Paxton’s credibility and to determine whether, assuming appellant made the threat,

he was referring to Wildman and Barnum.

      The State was not required to prove, beyond a reasonable doubt, that

appellant actually made this threat to Paxton. Regardless, as the State notes, a

person commits the offense of terroristic threat if he “threatens to commit any

offense involving violence to any person . . . within intent to . . . place any person

in fear of imminent serious bodily injury.” TEX. PENAL CODE ANN. § 22.07(a)(2)

(Vernon 2011). Osani’s and Paxton’s testimony is some evidence that appellant

                                         58
threatened to kill Paxton, which constitutes a threat to commit an offense involving

violence, and that appellant made the threat in order to make both men afraid of

him and his ability and willingness to use violence.

      We overrule appellant’s third and fourth issues.10

            Denial of Requested Third-Party Culpability Instruction

      In his sixth issue, appellant contends that the trial court erred in denying his

requested jury instructions on the defense of third-party culpability.

      The trial court shall “deliver to the jury . . . a written charge distinctly setting

forth the law applicable to the case [and] not expressing any opinion as to the

weight of the evidence . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon

2007).   The trial court is required to instruct the jury on statutory defenses,

affirmative defenses, and justifications when they are raised by the evidence.

Walters v. State, 247 S.W.3d 204, 208–09 (Tex. Crim. App. 2007). The defendant

is entitled to an instruction on every defensive issue raised by the evidence,

“regardless of whether the evidence is strong, feeble, unimpeached, or

contradicted, and even when the trial court thinks that the testimony is not worthy

of belief.” Id. at 209. The Court of Criminal Appeals has held, however, “that if

the defensive theory is not explicitly listed in the penal code—if it merely negates

10
      To the extent appellant contends that the admission of this threat was erroneous
      due to the reference to two murders, we note that we have already held that the
      trial court properly admitted extraneous offense evidence concerning the Barnum
      murder.
                                           59
an element of the State’s case, rather than independently justifying or excusing the

conduct—the trial judge should not instruct the jury on it.” Id.; see also Giesberg

v. State, 984 S.W.2d 245, 250 (Tex. Crim. App. 1998) (“[B]ecause the authority to

establish what constitutes a defense rests solely with the Legislature, this Court

concludes [that] a defense which is not recognized by the Legislature as either a

defense or as an affirmative defense does not warrant a separate instruction.”).

      In Giesberg, the Court of Criminal Appeals addressed whether the trial court

properly denied the defendant’s requested jury instruction concerning the defense

of alibi. In holding that the trial court correctly denied the instruction, the Court of

Criminal Appeals noted that alibi “was excluded from the Revised Penal Code’s

list of defenses and affirmative defenses because it only serves to negate a

necessary element of proof in the State’s case—the defendant’s presence at the

time and the location of the commission of the crime. An alibi does not attempt to

justify or excuse a defendant’s actions.” Giesberg, 984 S.W.2d at 248. Defensive

issues that merely negate an element of the offense alleged by the State “do[] not

place a burden of proof upon a defendant to establish [them].” Id. at 250. A

defense such as alibi “casts doubt upon whether the State has met its burden” and

is therefore “sufficiently embraced in a general charge to the jury that the

defendant is presumed innocent until he or she is proven guilty beyond a

reasonable doubt.” Id. Because a general charge adequately encompasses an alibi

                                          60
defense, “a special instruction for the issue of alibi would needlessly draw a jury’s

attention to the evidence which raised alibi.” Id. Thus, the Court of Criminal

Appeals concluded, a specific instruction on an alibi defense “would constitute an

unwarranted comment on the weight of the evidence by the trial court.” Id.; see

also Walters, 247 S.W.3d at 212 (“In such a case, the non-statutory instruction

would constitute a prohibited comment on the weight of the evidence.”).

      Here, during the charge conference, defense counsel requested the

submission of three substantively identical jury instructions relating to the defense

of third-party culpability. One of the instructions was worded as follows:

      You have heard from the evidence that a person other than [the]
      defendant committed the offense for which the defendant is charged.
      The defendant is not required to prove the other person’s guilt. It is
      the prosecution that has the burden of proving the defendant guilty
      beyond a reasonable doubt; therefore, the defendant is entitled to an
      acquittal.

      If you have a reasonable doubt as to the defendant’s guilt, evidence
      that another person committed the charged offense may by itself leave
      you with a reasonable doubt. If after considering all the evidence,
      including any evidence that another person committed the offense,
      you have a reasonable doubt that the defendant committed the offense,
      you must find the defendant not guilty.

The trial court denied all three instructions.

      We conclude that the Giesberg rationale is applicable here.            Appellant

sought the submission of three instructions calling the jury’s attention to the fact

that evidence was presented that MCPD officers had other suspects in the Wildman

                                           61
case and that appellant was not present at the time that Wildman died and did not

commit the crime. Although appellant couches these requests as instructions on

the issue of “third-party culpability,” by requesting these instructions he is

essentially raising the defense of alibi. This defensive theory is not a statutory

defense, an affirmative defense, or a legal justification for the charged conduct.

And this defensive theory does not attempt to justify or excuse appellant’s conduct.

Instead, this defense negates an essential element of the State’s burden of proof,

namely, that appellant was present at the time of Wildman’s murder and committed

the charged acts. This defense thus simply attacks the issue of identity and “casts

doubt” upon whether the State has met its ultimate burden beyond a reasonable

doubt. See Giesberg, 984 S.W.2d at 250.

      We therefore conclude, on the basis of Giesberg and its progeny, that

appellant’s third-party culpability defense does not entitle him to a specific jury

instruction, and that, indeed, giving such an instruction would unduly call the

jury’s attention to the specific evidence supporting the proposition that someone

else murdered Wildman and would constitute an impermissible comment on the

weight of the evidence. See Giesberg, 984 S.W.2d at 248–50; see also Walters,

247 S.W.3d at 212 (following Giesberg and holding that, “generally speaking,”

non-statutory jury instructions constitute impermissible comment on weight of




                                        62
evidence). We hold that the trial court correctly denied appellant’s requested jury

instructions on the defense of third-party culpability.

      We overrule appellant’s sixth issue.

                                 Chain of Custody

      In his eighth issue, appellant contends that the trial court erroneously

admitted the condom found at the Barnum murder, and the subsequent DNA

testing results derived from that condom, because the State failed to establish a

proper chain of custody.

      Texas Rule of Evidence 901(a) provides that “[t]he requirement of

authentication or identification as a condition precedent to admissibility is satisfied

by evidence sufficient to support a finding that the matter in question is what its

proponent claims.” TEX. R. EVID. 901(a). This rule “does not require the State to

prove anything.” Silva v. State, 989 S.W.2d 64, 67–68 (Tex. App.—San Antonio

1998, pet. ref’d) (emphasis in original); see also Garner v. State, 939 S.W.2d 802,

805 (Tex. App.—Fort Worth 1997, pet. ref’d).              Instead, “[i]t requires only a

showing that satisfies the trial court that the matter in question is what the State

claims; once that showing is made, the exhibit is admissible.” Garner, 939 S.W.2d

at 805.    Evidence may be authenticated or identified by different methods,

including testimony from a witness with knowledge that an item is what it is

claimed to be. TEX. R. EVID. 901(b)(1); Dossett v. State, 216 S.W.3d 7, 17 (Tex.

                                          63
App.—San Antonio 2006, pet. ref’d); Martinez v. State, 186 S.W.3d 59, 62 (Tex.

App.—Houston [1st Dist.] 2005, pet. ref’d).

      The State meets the authentication requirement for admissibility once it “has

shown the beginning and the end of the chain of custody, particularly when the

chain ends at a laboratory. Any gaps and minor theoretical breaches go to the

weight rather than the admissibility of the evidence, absent a showing of

tampering.” Martinez, 186 S.W.3d at 62; see also Druery v. State, 225 S.W.3d

491, 503–04 (Tex. Crim. App. 2007) (“Absent evidence of tampering or other

fraud, which has not been presented here, problems in the chain of custody do not

affect the admissibility of the evidence. Instead, such problems affect the weight

that the fact-finder should give the evidence, which may be brought out and argued

by the parties.”). The trial court has discretion to determine the sufficiency of the

predicate of authentication, and, absent an abuse of that discretion, we will not

reverse the trial court’s judgment. Foster v. State, 101 S.W.3d 490, 498 (Tex.

App.—Houston [1st Dist.] 2002, no pet.). The trial court does not abuse its

discretion in admitting evidence where it reasonably believes that a reasonable

juror could find that the evidence has been authenticated or identified. Druery, 225

S.W.3d at 502; Dossett, 216 S.W.3d at 17.

      Although Officer Cates died before appellant’s trial, and, thus, could not

provide testimony regarding the specific procedure he used for gathering the

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bedsheet at Barnum’s apartment, the precise location where he discovered the

condom, or the condition of the condom when he discovered it, Officers Ruiz and

Null both testified that they observed Cates gather the corners of the sheet and

place it in a container. Officer Null testified that, later that day, Cates called him to

the crime scene unit office and showed him a plastic bag containing a used

condom. He identified the same plastic bag at trial, noting that it was brought to

court in an envelope labeled with Barnum’s name, the location of the offense, the

case number, and Officer Cates’s name and badge number.

      Appellant makes no allegations of alteration, tampering, or fraud. In these

circumstances, problems in the chain of custody do not affect the admissibility of

the evidence, but rather they affect the weight the jury gives to the evidence. See

Druery, 225 S.W.3d at 503–04. Factors such as the apparent age of the condom,

its appearance when recovered, and whether any fluid was present in the condom

upon recovery are relevant to the question of whether appellant murdered Barnum

at or near the time they engaged in intercourse, which affects the similarity of the

Barnum murder to the Wildman murder; but the fact that testimony regarding these

factors is absent does not affect the admissibility of the condom itself.            We

conclude that the State presented sufficient evidence for the trial court to conclude

that the matter in question—the condom recovered from Barnum’s bed—is what




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its proponent, the State, claims that it is. See TEX. R. EVID. 901(a); Garner, 939

S.W.2d 805.

      We hold that the trial court could have reasonably believed that a reasonable

jury could find that the condom has been authenticated and identified, and,

therefore, the trial court did not abuse its discretion in admitting the condom and

the DNA evidence obtained from that condom. See Druery, 225 S.W.3d at 502;

Dossett, 216 S.W.3d at 17.

      We overrule appellant’s eighth issue.

                                   Juror Coercion

      Finally, in his ninth issue, appellant contends that the trial court erroneously

denied appellant’s motion for mistrial made when a juror indicated that she was

being “attacked” or coerced to change her opinion by other jurors during

deliberations.

      We review a trial court’s denial of a motion for mistrial for an abuse of

discretion.   Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).

Appellant cites no authority for the proposition that alleged “coercion” of one juror

by her fellow jurors is a proper basis to grant a motion for mistrial.

      During deliberations, the trial court received a note from a juror requesting

substitution of one of the alternate jurors. In the note, the juror stated,

      I have listened to all of the testimony and have seen all of the
      evidence, and my mind, heart, body, and soul ALL agree with the
                                           66
      decision I have made. The problem is my decision differs from many
      of my fellow jurors and I am beginning to feel attacked to change my
      opinion. I am having headaches, stomach aches, and lack of sleep
      since this trial has begun. I don’t know how this process goes, but I
      don’t think I want to try to be persuaded to change my decision.

After the trial court informed the jury that the law does not allow for substitution of

jurors in this situation and that it should continue its deliberations, the jury

subsequently announced that it had reached a verdict. The jury found appellant

guilty, and, on defense counsel’s request, the trial court polled the jury. All of the

jurors, including the one who had written the note, informed the trial court that the

verdict was his or her own. Appellant presented no evidence that the juror who

had written the note “did not actually agree with the jury’s verdict after the verdict

was given.” See Franks v. State, 90 S.W.3d 771, 800 (Tex. App.—Fort Worth

2002, no pet.) (“In fact, Sawyer expressed agreement with the guilty verdict

directly after the verdict was read [in a jury poll].”).

      Disagreements between jurors and attempts to influence the opinions of

fellow jurors are part and parcel of the deliberative process. In the absence of any

evidence that the juror returned a verdict that was not actually her own, we hold

that the trial court did not err in denying appellant’s motion for mistrial.

      We overrule appellant’s ninth issue.




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                                    Conclusion

      We affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Publish. TEX. R. APP. P. 47.2(b).




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