                                                                                    ACCEPTED
                                                                                02-17-00221-CR
                                                                    SECOND COURT OF APPEALS
                                                                          FORT WORTH, TEXAS
                                                                            12/21/2017 10:48 AM
                                                                                 DEBRA SPISAK
                                                                                         CLERK

                IN THE COURT OF APPEALS FOR THE
           SECOND COURT OF APPEALS DISTRICT OF TEXAS
                                                                FILED IN
                                                         2nd COURT OF APPEALS
ASPEN WARREN,                      §                      FORT WORTH, TEXAS
  APPELLANT                        §                    12/21/2017 10:48:03 AM
                                   §                          DEBRA SPISAK
                                                                 Clerk
V.                                 §     NO. 02-17-00221-CR
                                   §
THE STATE OF TEXAS,                §
  APPELLEE                         §

     APPEALED FROM CAUSE NUMBER 1443873D IN THE 396TH JUDICIAL
DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE GEORGE
GALLAGHER, JUDGE PRESIDING.

                                 §§§
                             STATE'S BRIEF
                                 §§§

                                   SHAREN WILSON
                                   Criminal District Attorney
                                   Tarrant County, Texas

                                   DEBRA WINDSOR
                                   Chief, Post-Conviction

                                   STEVEN W. CONDER, Assistant
                                   Criminal District Attorney
No Oral Argument Requested         401 W. Belknap
Unless Appellant Granted           Fort Worth, Texas 76196-0201
Oral Argument                      (817) 884-1687
                                   FAX (817) 884-1672
                                   State Bar No. 04556510
                                   COAAppellatealerts@tarrantcountytx.gov

                                   MICHELE HARTMANN, Assistant
                                   Criminal District Attorney
                                                  TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................................................... ii

STATEMENT OF THE CASE....................................................................................................... 1

STATEMENT REGARDING ORAL ARGUMENT ................................................................. 1

STATEMENT OF FACTS ............................................................................................................. 2

SUMMARY OF STATE’S ARGUMENTS ................................................................................. 6

STATE’S REPLY TO APPELLANT’S FIRST POINT OF ERROR:
  SUFFICIENCY .............................................................................................................................. 7

     A.         Standard of Review ................................................................................................... 7
     B.         Evidence Supports Jury’s Verdict ........................................................................ 8

STATE’S REPLY TO APPELLANT’S SECOND POINT OF ERROR:
  JAIL TELEPHONE CALL - RULE 403.............................................................................. 12

     A.         Proper Admission of Jail Telephone Call between
                Appellant and his Mother - Rule 403 ............................................................... 13
     B.         Reversible Error Analysis ..................................................................................... 17

STATE’S REPLY TO APPELLANT’S THIRD POINT OF ERROR:
  INTERVIEW - RULE 403 .................................................................................................... 21

     A.         Proper Admission of Interview- Rule 403..................................................... 22
     B.         Reversible Error Analysis ..................................................................................... 25

CONCLUSION AND PRAYER .................................................................................................. 29

CERTIFICATE OF SERVICE ..................................................................................................... 29

CERTIFICATE OF COMPLIANCE ........................................................................................... 30



                                                                     i
                                                INDEX OF AUTHORITIES

CASES                                                                                                                             PAGES

Aguilar v. State,
  468 S.W.2d 75 (Tex. Crim. App. 1971) .......................................................................... 9

Allridge v. State,
   762 S.W.2d 146 (Tex. Crim. App. 1988), cert. denied,
   489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238 (1989)............................... 17, 25

Baker v. State,
  2003 WL 21404076 (Tex. App. – Amarillo June 18, 2003,
  pet. refused) ............................................................................................................................ 10

Brooks v. State,
   323 S.W.3d 893 (Tex. Crim. App. 2010) ........................................................................ 7

Brown v. State,
   270 S.W.3d 564 (Tex. Crim. App. 2008), cert. denied,
   556 U.S. 1211, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009) ...................................... 7

Bush v. State,
  628 S.W.2d 441 (Tex. Crim. App. 1982) ...................................................................... 23

Clayton v. State,
   235 S.W.3d 772 (Tex. Crim. App. 2007) ........................................................................ 8

Davis v. State,
  329 S.W.3d 798 (Tex. Crim. App. 2010) .............................................................. 14, 23

DiCarlo v. State,
   2009 WL 2476630 (Tex. App. – Austin August 14, 2009, pet. refused) ........15

Easley v. State,
  424 S.W.3d 535 (Tex. Crim. App. 2014) .............................................................. 18, 26



                                                                     ii
Erazo v. State,
   144 S.W.3d 487 (Tex. Crim. App. 2004) .............................................................. 14, 22

Gallo v. State,
   239 S.W.3d 757 (Tex. Crim. App. 2007), cert. denied,
   553 U.S. 1080, 128 S.Ct. 2872, 171 L.Ed.2d 813 (2008)............................... 13, 22

Gardner v. State,
  306 S.W.3d 274 (Tex. Crim. App. 2009), cert. denied,
  562 U.S. 850, 131 S.Ct. 103, 178 L.Ed.2d 64 (2010)................................................. 9

Gardner v. State,
  2015 WL 6784270 (Tex. App. – Dallas November 6, 2015, no pet.)...............16

Gilmore v. State,
   397 S.W.3d 226 (Tex. App. – Fort Worth 2012, pet. refused).............................. 9

Hilburn v. State,
   312 S.W.3d 169 (Tex. App. – Fort Worth 2010, no pet.) ...................................... 11

Jackson v. Virginia,
   443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)................................................. 7

Jennings v. State,
   2017 WL 3633992 (Tex. App. – Fort Worth August 24, 2017) .........................25

King v. State,
   953 S.W.2d 266 (Tex. Crim. App. 1997) .............................................................. 18, 26

Lancon v. State,
  276 S.W.3d 518 (Tex. App. – San Antonio, pet. refused) ..................................... 10

Laster v. State,
   275 S.W.3d 512 (Tex. Crim. App. 2009) ........................................................................ 8

Ledesma v. State,
   993 S.W.2d 361 (Tex. App. – Fort Worth 1999, pet. refused)............................10

                                                      iii
Lopez v. State,
  2003 WL 1922430 (Tex. App. – Austin April 24, 2003, no pet.).......................25

Martinez v. State,
  327 S.W.3d 727 (Tex. Crim. App. 2010), cert. denied,
  563 U.S. 1037, 131 S.Ct. 296, 180 L.Ed.2d 253 (2011) ................................. 13, 22

Montgomery v. State,
  810 S.W.2d 372 (Tex. Crim. App. 1990) .............................................................. 15, 23

Motilla v. State,
  78 S.W.3d 352 (Tex. Crim. App. 2002) ................................................................ 18, 26

Murry v. State,
  457 S.W.3d 446 (Tex. Crim. App. 2015) ........................................................................ 8

Rich v. State,
   160 S.W.3d 575 (Tex. Crim. App. 2005) .............................................................. 18, 26

Sanchez v. State,
   418 S.W.3d 302 (Tex. App. – Fort Worth 2013, pet. refused).................... 13, 22

Solomon v. State,
   49 S.W.3d 356 (Tex. Crim. App. 2001) ................................................................ 17, 26

State v. Mechler,
   153 S.W.3d 435 (Tex. Crim. App. 2005) .............................................................. 14, 22

Torres v. State,
   794 S.W.2d 596 (Tex. App. - Austin 1990, no pet.)......................................... 14, 23

Watson v. State,
  204 S.W.3d 404 (Tex. Crim. App. 2006) ...................................................................... 11

Williams v. State,
  34 S.W.3d 587 (Tex. App. – Eastland 2000, pet. refused).................................... 10



                                                       iv
Williams v. State,
  958 S.W.2d 186 (Tex. Crim. App. 1997) .............................................................. 13, 22

Wood v. State,
  2013 WL 388150 (Tex. App. – Corpus Christi-Edinburg
  January 31, 2013, no pet.) ................................................................................................. 17

Wyatt v. State,
  23 S.W.3d 18 (Tex. Crim. App. 2000) ............................................................................. 8

Zavala v. State,
   401 S.W.3d 171 (Tex. App. – Houston [14th Dist.] 2011, pet. refused).........16


STATUTES

Tex. Penal Code §19.02(b)(1), (2) ......................................................................................... 8


RULES

Tex. R. App. P. 44.2(b) ....................................................................................................... 17, 26

Tex. R. Evid. 403 ................................................................................................................ passim




                                                                   v
                   IN THE COURT OF APPEALS FOR THE
              SECOND COURT OF APPEALS DISTRICT OF TEXAS

ASPEN WARREN,                          §
  APPELLANT                            §
                                       §
V.                                     §     NO.   02-17-00221-CR
                                       §
THE STATE OF TEXAS,                    §
  APPELLEE                             §

     APPEALED FROM CAUSE NUMBER 1443873D IN THE 396TH JUDICIAL
DISTRICT COURT OF TARRANT COUNTY, TEXAS; THE HONORABLE GEORGE
GALLAGHER, JUDGE PRESIDING.

TO THE HONORABLE COURT OF APPEALS:


                          STATEMENT OF THE CASE

      The appellant was convicted by a jury of murder. (C.R. I:131 R.R. VI:36).

The trial court sentenced him to fifty years’ confinement. (C.R. I:134-36; R.R.

VII:17).



                STATEMENT REGARDING ORAL ARGUMENT

      The State does not believe that oral argument is necessary to the Court’s

decisional process because the issue raised herein is primarily fact-based.

However, if the appellant is granted oral argument, the State would request an

opportunity to respond.

                                      1
                               STATEMENT OF FACTS

      Sometime after 6:00 p.m. on January 27, 2016, Brittany Daniel left work

as the housekeeping supervisor at the Hawthorne Suites on University Drive

in Fort Worth (R.R. IV:32-33, 35). Ms. Daniel was taking Jasmine Thomas –

one of her housekeepers – home to Arlington because her normal ride was

unavailable.    (R.R. IV:35).     After first dropping off another housekeeper

somewhere in Fort Worth, the women got onto Interstate 30 and headed

towards Arlington. (R.R. IV:36-37).

      Around this same time, the appellant picked up his girlfriend, Bri’Anna

Walker, from her work at the Walgreens on the corner of McCart Avenue and

Berry Street in Fort Worth. (R.R. IV:148, 152-53). Ms. Walker got into the

front passenger seat while three other people – Sha’Brandon Young, Trinton

Kennedy and A’Lexus Donald – got into the backseat. (R.R. IV:153). As they

headed down Berry Street towards Interstate 35W, Ms. Walker noticed a chip

in her passenger window tint and began arguing about it with the appellant.

(R.R. IV:154, 179).1 This argument continued as they approached Interstate

30. (R.R. IV:158).


1     Ms. Walker had been given the car by her stepfather, Keith Moore. (R.R.
      IV:150). She routinely let the appellant to drive her car, including all day on
      January 27th, even though Mr. Moore had forbidden it. (R.R. IV:151-52).

                                            2
      The appellant pulled in front of Ms. Daniel’s car as he entered Interstate

30. (R.R. IV:158). Ms. Daniel switched lanes, passed the appellant, and then

pulled back in front causing the appellant to hit the brakes hard. (R.R. IV:158).

The appellant sped up to catch Ms. Daniel’s car eventually pulling up beside

her somewhere near the Eastchase exit. (R.R. IV:38, 61-62, 159). With the

two cars side-by-side, Mr. Kennedy called Ms. Daniel an “ugly bitch” out his

window, and she responded by flipping him off. (R.R. IV:41-42, 159). At this

point, the appellant slowed down the car, rolled down Ms. Walker’s window

with the automatic controls, and fired two shots out the passenger window

just past Ms. Walker’s face. (R.R. IV:62-63, 161-63). He then sped off toward

Arlington where he shared an apartment with Mr. Young and Mr. Kennedy.

(R.R. IV:62, 153-54, 165).

      Ms. Daniel grabbed her left side and said that she had been shot. (R.R.

IV:43, 47). After pulling her car to the side of the road, Ms. Daniel hunched

toward Ms. Thomas and became unresponsive. (R.R. IV:43, 45, 62). Although

Ms. Thomas did not see anyone with a gun, including the man who had

exchanged words with Ms. Daniel, she knew the gunshots had come from the

car next to them on the highway. (R.R. IV:45-46).

      When the Arlington police reached Ms. Daniel’s car, she was slumped

                                       3
over the center console. (R.R. IV:85). She had no pulse or breath, and her eyes

were in an unreactive fixed stare. (R.R. IV:86). Ms. Daniel had a wound to her

left side just below her arm. (R.R. IV:88). The police found bullet holes in the

front and back driver’s side doors. (R.R. IV:86, 89, 113).

      Dr. Nizam Peerwani performed an autopsy on Ms. Daniel in which he

removed a bullet from just under her skin in a cutaneous area. (R.R. IV:197,

200, 202). The entry gunshot wound was on Ms. Daniel’s left side located 42.5

inches above her left heel and seven (7) inches left of her interior midline.

(R.R. IV:202). The bullet was recovered on Ms. Daniel’s right side 44 inches

above her right heel and seven and one-half (7.5) inches right of her interior

midline. (R.R. IV:203). Dr. Peerwani described the bullet path as traveling left

to right, slightly backwards, and very slightly upwards. (R.R. IV:203). He

described the entry wound as irregular and consistent with passing through

an intermittent target. (R.R. IV:202).

      The bullet pierced Ms. Daniel’s diaphragm, perforated her stomach, and

went through the head of her pancreas and her right liver lobe before ending

up in her right flank. (R.R. IV:205). These injuries caused serious internal

bleeding which resulted in Ms. Daniel’s death. (R.R. IV:206, 208).

      Firearms examiner Jamie Becker examined the bullet recovered during

                                         4
Ms. Daniel’s autopsy.     (R.R. IV:223).   After looking at its design feature,

measurements and weight, as well as its features from the firing process, Ms.

Becker generated a list of possible firearms that fired this bullet, including a

.40 caliber Smith & Wesson. (R.R. IV:224).

      Keith Moore owned a .40 caliber Smith & Wesson semiautomatic which

had gone missing from its storage contained sometime before Christmas

2016. (R.R. IV:131, 133). The appellant was often at his house when neither

Mr. Moore nor his wife were at home. (R.R. IV:131). Mr. Moore doubted that

anyone broke into his house to steal his gun since nothing else was taken,

there were no signs of forced entry, and his home is protected by burglar bars

and a German shepherd. (R.R. IV:135).

      Detectives Steven Griesbach and Byron Stewart interviewed the

appellant on February 3, 2016. (R.R. V:46-48). The appellant first blamed the

shooting on Mr. Young, but eventually admitted that he fired the shot which

killed Ms. Daniel in an attempt to scare her for “road-raging” him. (R.R. V:53-

54; VIII:State’s Exhibit #53).




                                       5
                        SUMMARY OF STATE'S ARGUMENTS

Sufficiency:

         The evidence is sufficient to support the appellant’s murder conviction.



Jail Telephone Call - Rule 403:

         The trial court properly admitted the appellant’s jail telephone call with

his mother because its probative value was not substantially outweighed by

any danger of unfair prejudice. Alternatively, its admission is not reversible

error.



Police Interview - Rule 403:

         The trial court properly admitted the appellant’s police interview

because its probative value was not substantially outweighed by any danger

of unfair prejudice. Alternatively, its admission is not reversible error.




                                          6
         STATE'S REPLY TO APPELLANT'S FIRST POINT OF ERROR:
                            SUFFICIENCY


Appellant's Contention:

      The appellant contends that the evidence is insufficient to support his

murder conviction.



State's Reply:

      The evidence is sufficient to support the appellant’s murder conviction.



Arguments and Authorities:

A.    Standard of Review

      In a sufficiency review, evidence is viewed in the light most favorable to

the prosecution in order to determine whether any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010), citing

Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560

(1979). The jury as factfinder is the sole judge of the weight and credibility of

the evidence presented, and is free to believe or disbelieve any testimony.

Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 556

                                       7
U.S. 1211, 129 S.Ct. 2075, 173 L.Ed.2d 1139 (2009); Wyatt v. State, 23 S.W.3d

18, 30 (Tex. Crim. App. 2000).

      The appellate court presumes that the factfinder resolved any

conflicting inferences in favor of the prosecution, and defers to that resolution.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). So long as the

verdict is supported by a reasonable inference, it is within the province of the

fact finder to choose which inference is most reasonable. Laster v. State, 275

S.W.3d 512, 523-24 (Tex. Crim. App. 2009). Reviewing courts may not employ

a “divide and conquer strategy” for evaluating the evidence, in which

individual facts are explained away if those facts, when considered together,

support a reasonable inference proving an element of the offense. Murry v.

State, 457 S.W.3d 446, 448-49 (Tex. Crim. App. 2015).



B.    Evidence Supports Jury’s Verdict

      A person commits murder if (1) he intentionally or knowingly causes

the death of an individual; or (2) he intends to cause serious bodily injury and

commits an act clearly dangerous to human life that causes the death of an

individual. Tex. Penal Code §19.02(b)(1), (2). A defendant's identity and

criminal culpability may be proved by either direct or circumstantial evidence,

                                        8
coupled with all reasonable inferences from that evidence. Gardner v. State,

306 S.W.3d 274, 286 (Tex. Crim. App. 2009), cert. denied, 562 U.S. 850, 131

S.Ct. 103, 178 L.Ed.2d 64 (2010). A defendant’s positive identification as the

perpetrator, including just the testimony of a single eyewitness, is sufficient to

support a conviction. Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App.

1971); Gilmore v. State, 397 S.W.3d 226, 240 (Tex. App. – Fort Worth 2012,

pet. refused).

       The following evidence supports the jury’s verdict that the appellant

fired the fatal shot which killed Brittany Daniel:

   •     The appellant became enraged when Ms. Daniel pulled in front of
         him on Interstate 30 causing him to hit the brakes. (R.R. IV:158).

   •     The appellant raced down the interstate to catch Ms. Daniel and
         eventually pulled up beside her. (R.R. IV:38, 61-62, 159).

   •     The appellant slowed down his car and rolled down front
         passenger Bri’Anna Walker’s window using the automatic
         controls. (R.R. IV:62, 161).

   •     The appellant fired two shots out Ms. Walker’s window before
         speeding off. (R.R. IV:62-63, 162-63).

   •     Ms. Daniel was hit in her left side just below her left arm by a
         bullet coming from the appellant’s car. (R.R. IV:43, 45-47, 88).

   •     Ms. Daniel pulled off to the side of the road and soon slumped
         over the center console with no pulse or breath, and an unreactive
         fixed stare. (R.R. IV:85-86).

                                        9
  •      The bullet traveled through numerous internal organs and caused
         serious internal bleeding. (R.R. IV:205-06).

   •     Dr. Peerwani determined that the injuries from this bullet caused
         Ms. Daniel’s death. (R.R. IV:208).

   •     The police found bullet holes in the front and back driver’s side
         doors. (R.R. IV:86, 89, 113).

   •     Ms. Walker testified that the shots were not fired from the
         backseat and that her window was not rolled down by a backseat
         passenger. (R.R. IV:165).

   •     The appellant admitted that he shot at Ms. Daniel in an attempt to
         scare her for “road-raging” him. (R.R. (R.R. V:53-54; VIII:State’s
         Exhibit #53).

Put simply, the jury heard evidence that the appellant fired the gunshots

which killed Ms. Daniel – evidence from which they rationally convicted him

of murder. See Lancon v. State, 276 S.W.3d 518, 522-23 (Tex. App. – San

Antonio, pet. refused) (eyewitness testimony that defendant fired fatal shots,

even if hotly contested, is sufficient to support his murder conviction);

Williams v. State, 34 S.W.3d 587, 590 (Tex. App. – Eastland 2000, pet.

refused) (evidence sufficient where eyewitness identified defendant as the

shooter); Ledesma v. State, 993 S.W.2d 361, 366-67 (Tex. App. – Fort Worth

1999, pet. refused) (sufficient evidence to support murder conviction where

witness saw defendant shoot gun into car at deceased); Baker v. State, 2003


                                     10
WL 21404076, at *1-2 (Tex. App. – Amarillo June 18, 2003, pet. refused) (not

designated for publication) (sufficient evidence to prove murder where

witness observed defendant approach deceased’s car with a gun and shoot

him five times).2

      The appellant suggests that Ms. Walker’s testimony is inconsistent with

testimony that the bullet path went at a downward angle and, thus, should be

discounted. See Appellant’s Brief, page 9. Notwithstanding that witness

credibility is an issue for jury resolution, Ms. Walker’s testimony that the

appellant fired the fatal shot straight out her window is consistent with Dr.

Peerwani’s description that the bullet traveled very slightly upwards. (R.R.

IV:203). Thus, there is no reason to discount Ms. Walker’s testimony.

      The appellant's first point of error should be overruled.




2     The State acknowledges that Lancon and Ledesma actually concern factual
      sufficiency reviews - a more stringent standard that essentially began with a
      presumption that the evidence was legally sufficient. See Watson v. State,
      204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Hilburn v. State, 312 S.W.3d
      169, 174 (Tex. App. – Fort Worth 2010, no pet.).

                                           11
        STATE'S REPLY TO APPELLANT'S SECOND POINT OF ERROR:
                   JAIL TELEPHONE CALLS - RULE 403


Appellant's Contention:

      The appellant contends that the trial court improperly admitted jail

telephone calls between him and his mother into evidence.



State's Reply:

      The trial court properly admitted these jail telephone calls because their

probative value was not substantially outweighed by any danger of unfair

prejudice. Alternatively, their admission is not reversible error.



Arguments and Authorities:

      The State introduced recordings of telephone calls made by the

appellant from the Arlington City Jail. (R.R. V:14, VIII:State’s Exhibit #51).

The trial court overruled the appellant’s hearsay and rule 403 objections, and

admitted them into evidence.        (R.R. V:15).    The State later published

recordings of two conversations between the appellant and his sister on

February 2 and 3, 2016, and portions of one conversation between the

appellant and his mother on February 3, 2016.           (R.R. VI:51-52, 58, 59,

                                       12
VIII:State’s Exhibit #51).3



A.      Proper Admission of Jail Telephone Call between Appellant and His
        Mother - Rule 403 4

        The Texas Rules of Evidence provide that:

     The court may exclude relevant evidence if its probative value is
     substantially outweighed by a danger of one or more of the following:
     unfair prejudice, confusing the issues, misleading the jury, undue delay,
     or needlessly presenting cumulative evidence.

Tex. R. Evid. 403. This rule favors the admission of relevant evidence and

presumes that it will be more probative than prejudicial. Martinez v. State,

327 S.W.3d 727, 737 (Tex. Crim. App. 2010), cert. denied, 563 U.S. 1037, 131

S.Ct. 296, 180 L.Ed.2d 253 (2011); Gallo v. State, 239 S.W.3d 757, 762 (Tex.

Crim. App. 2007), cert. denied, 553 U.S. 1080, 128 S.Ct. 2872, 171 L.Ed.2d 813

(2008); Sanchez v. State, 418 S.W.3d 302, 311 (Tex. App. – Fort Worth 2013,

pet. refused). A trial court is presumed to engage in the required balancing

test, and silence of the record will not imply otherwise. Williams v. State, 958

S.W.2d 186, 195–96 (Tex. Crim. App. 1997).


3       The appellant renewed his hearsay and rule 403 objections before the State
        published his conversations with his sister, which the trial court again
        overruled. (R.R. V:52).

4       The appellant does not challenge the admission of his recorded telephone
        conversations with his sister. See Appellant’s Brief, page 10.

                                           13
       A trial court’s 403 ruling is reviewed under an abuse of discretion

standard. State v. Mechler, 153 S.W.3d 435, 439 (Tex. Crim. App. 2005). In

making this determination, the reviewing court should consider:

   •     The probative value of the evidence;
   •     The potential to impress the jury in some irrational, yet indelible
         way;
   •     The time needed to develop the evidence; and
   •     The proponent's need for the evidence.

Erazo v. State, 144 S.W.3d 487, 489 (Tex. Crim. App. 2004).

       The term “probative value” refers to the inherent probative force of an

item of evidence - that is, how strongly it serves to make more or less

probable the existence of a fact of consequence to the litigation - coupled with

the proponent's need for that item of evidence. Davis v. State, 329 S.W.3d

798, 806 (Tex. Crim. App. 2010). The term “unfair prejudice” does not simply

mean that the evidence will injure or prejudice the opponent’s case which is,

after all, the central point of offering evidence; rather, it refers to an undue

tendency to suggest decision on an improper basis, commonly, though not

necessarily, an emotional one. Davis v. State, 329 S.W.3d at 806; Torres v.

State, 794 S.W.2d 596, 600 (Tex. App. - Austin 1990, no pet.). Rule 403

applies only when there exists a clear disparity between the degree of

prejudice arising from the offered evidence and its probative value.

                                      14
State, 329 S.W.3d at 806.

      In this jail telephone call, the appellant tells his mother that he admitted

selling the gun and disposing of the shell casings. (R.R. V:60, VIII:State’s

Exhibit #51). This confirmation has probative value as a tacit admission of

guilt in that he possessed the gun. See DiCarlo v. State, 2009 WL 2476630, at

*2 (Tex. App. – Austin August 14, 2009, pet. refused) (not designated for

publication) (defendant’s statement that “we all make mistakes” and his

failure to contradict his brother’s assertion that he was intoxicated during a

recorded jail telephone conversation had probative value as a tacit admission

of guilt). Furthermore, the appellant’s statements connecting himself to the

gun make more probable that he fired the fatal gunshots; thus, having

probative value in establishing his identity as the shooter. See Montgomery v.

State, 810 S.W.2d 372, 387 (Tex. Crim. App. 1990) (identity is not just a fact of

consequence, but a truly elemental fact).

      The appellant does not articulate any undue tendency arising from this

telephone call that the jury’s guilty verdict was due to an emotional or

otherwise improper basis rather than due to this case’s facts. See Appellant’s

Brief, pages 10-11.    Thus, he has not shown “unfair” prejudice from their

admission.

                                       15
      The laying of the predicate for admitting the appellant’s jail telephone

calls took eight pages of the record, including the defense voir dire

examination of the telephone company representative. (R.R. V:8-15). The two

portions of the appellant’s conversation with his mother played for the jury

lasted approximately five and one-half minutes. (R.R. V:59). Put simply, the

State did not spend an inordinate amount of time on this telephone call.5

      While Ms. Walker testified that the appellant fired the shot that killed

Ms. Daniel, the appellant’s conversation about the guns and shell casings -

tacitly admitting his guilt - helps confirm that identity.            (R.R. V:51-52,

VIII:State’s Exhibit #51). Thus, the State had a need for this evidence.

      Given its probative value, its lack of any unfair prejudice, its short time

duration and the State’s need, the trial court did not abuse its discretion by

admitting the recording of the appellant’s jail telephone call with his mother.

See Zavala v. State, 401 S.W.3d 171, 176-77 (Tex. App. – Houston [14th Dist.]

2011, pet. refused) (admission of recorded jail telephone call where defendant

stated that he wanted police to find a computer he left in his truck was not an

abuse of discretion where did not articulate how this admission was unfairly

prejudicial); Gardner v. State, 2015 WL 6784270, at *3 (Tex. App. – Dallas

5     The appellant’s two recorded conversations with his sister took
      approximately twenty-two minutes to play for the jury. (R.R. V:51-52, 58).

                                         16
November 6, 2015, no pet.) (not designated for publication) (probative value

of recorded jail telephone calls suggesting ways to minimize proof of

defendant’s culpability not substantially outweighed by danger of prejudicial

effect since they did not consume an enormous amount of time or have a

tendency to the suggest the jury make its decision on an improper basis);

Wood v. State, 2013 WL 388150, at *6 (Tex. App. – Corpus Christi-Edinburg

January 31, 2013, no pet.) (not designated for publication) (probative value of

recorded jail telephone calls rebutting defendant’s lack of knowledge not

substantially outweighed by any danger of unfair prejudice).6

      The appellant’s second point of error should be overruled.



B.    Reversible Error Analysis

      The erroneous admission of evidence is generally non-constitutional

error, and is not grounds for reversal unless it affects an accused’s substantial

rights. Solomon v. State, 49 S.W.3d 356, 365 (Tex. Crim. App. 2001); Tex. R.


6     The appellant also alleges that the State failed to lay the proper predicate for
      his jail telephone calls’ admission. See Appellant’s Brief, page 10. He has not
      preserved this issue for appellate review because he only made rule 403 and
      hearsay objections at trial. See Allridge v. State, 762 S.W.2d 146, 157 (Tex.
      Crim. App. 1988), cert. denied, 489 U.S. 1040, 109 S.Ct. 1176, 103 L.Ed.2d 238
      (1989) (nothing preserved for appellate review where error presented on
      appeal differs from objection raised at trial).


                                            17
App. P. 44.2(b).     A substantial right is affected when the error has a

substantial and injurious effect or influence in determining the jury's verdict.

Rich v. State, 160 S.W.3d 575, 577 (Tex. Crim. App. 2005); King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997). Substantial rights are not affected by

the erroneous admission of evidence if, after examining the record as a whole,

we have fair assurance that the error did not influence the jury, or had but

slight effect. Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).

Neither the State nor the appellant has the burden to demonstrate harm;

rather, the reviewing court should consider the entirety of the record in

assessing harm. Easley v. State, 424 S.W.3d 535, 542 (Tex. Crim. App. 2014);

Rich v. State, 160 S.W.3d at 577.

       The appellant’s jail telephone calls did not substantially sway the jury’s

decision because it heard significant other evidence establishing his guilt:

   •      The appellant became enraged when Ms. Daniel pulled in front of
          him on Interstate 30 causing him to hit the brakes. (R.R. IV:158).

   •      The appellant raced down the interstate to catch Ms. Daniel and
          eventually pulled up beside her. (R.R. IV:38, 61-62, 159).

   •      The appellant slowed down his car and rolled down front
          passenger Bri’Anna Walker’s window using the automatic
          controls. (R.R. IV:62, 161).

   •      The appellant fired two shots out Ms. Walker’s window before

                                       18
          speeding off. (R.R. IV:62-63, 162-63).

   •      Ms. Daniel was hit in her left side just below her left arm by a
          bullet coming from the appellant’s car. (R.R. IV:43, 45-47, 88).

   •      Ms. Daniel pulled off to the side of the road and soon slumped
          over the center console with no pulse or breath, and an unreactive
          fixed stare. (R.R. IV:85-86).

   •      The bullet traveled through numerous internal organs and caused
          serious internal bleeding. (R.R. IV:205-06).

   •      Dr. Peerwani determined that the injuries from this bullet caused
          Ms. Daniel’s death. (R.R. IV:208).

   •      The police found bullet holes in the front and back driver’s side
          doors. (R.R. IV:86, 89, 113).

   •      Ms. Walker testified that the shots were not fired from the
          backseat and that her window was not rolled down by a backseat
          passenger. (R.R. IV:165).

   •      The appellant admitted that he shot at Ms. Daniel in an attempt to
          scare her for “road-raging” him. (R.R. (R.R. V:53-54; VIII:State’s
          Exhibit #53).

Put simply, the jury heard substantial evidence that the appellant fired the

fatal gunshots.

       Finally, the State did not refer to the appellant’s telephone conversation

with his mother during jury arguments; in fact, it only made two passing

telephone call references regarding his use of the term “snitching” when

talking with his sister. (R.R. VI:13, 14). Thus, it cannot be said that the

                                       19
appellant’s telephone conversation with his mother substantially swayed the

jury’s guilty verdict such that its admission constitutes reversible error.

      The appellant’s second point of error should be overruled.




                                       20
         STATE'S REPLY TO APPELLANT'S THIRD POINT OF ERROR:
                        INTERVIEW - RULE 403


Appellant's Contention:

      The appellant contends that the trial court improperly admitted his

police interview evidence.



State's Reply:

      The trial court properly admitted the appellant’s police interview

because its probative value was not substantially outweighed by any danger

of unfair prejudice. Alternatively, its admission is not reversible error.



Arguments and Authorities:

      The State introduced a videotape of the appellant’s interview with

Detective Griesbach and Detective Stewart. (R.R. V:48-49). The appellant

objected to its admission under rule 403, which the trial court overruled.

(R.R. V:49).7




7     The appellant renewed his rule 403 objection and added a hearsay objection
      when the State published the interview to the jury which the trial court again
      denied. (R.R. V:53).

                                           21
A.       Proper Admission of Interview - Rule 403

         The trial court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of unfair prejudice, confusing the issues,

misleading the jury, undue delay, or needlessly presenting cumulative

evidence. Tex. R. Evid. 403. This rule favors the admission of relevant

evidence and presumes that relevant evidence will be more probative than

prejudicial. Martinez v. State, 327 S.W.3d at 737; Gallo v. State, 239 S.W.3d at

762; Sanchez v. State, 418 S.W.3d at 311. A trial court is presumed to engage

in the required balancing test, and silence of the record will not imply

otherwise. Williams v. State, 958 S.W.2d at 195–96.

         A trial court’s 403 ruling is reviewed under an abuse of discretion

standard. State v. Mechler, 153 S.W.3d at 439. In making this determination,

the reviewing court should consider:

     •     The probative value of the evidence;
     •     The potential to impress the jury in some irrational, yet indelible
           way;
     •     The time needed to develop the evidence; and
     •     The proponent's need for the evidence.

Erazo v. State, 144 S.W.3d at 489.

         The term “probative value” refers to the inherent probative force of an

item of evidence - that is, how strongly it serves to make more or less

                                        22
probable the existence of a fact of consequence to the litigation - coupled with

the proponent's need for that item of evidence. Davis v. State, 329 S.W.3d at

806. The term “unfair prejudice” does not simply mean that the evidence will

injure or prejudice the opponent’s case which is, after all, the central point of

offering evidence; rather, it refers to an undue tendency to suggest decision on

an improper basis, commonly, though not necessarily, an emotional one.

Davis v. State, 329 S.W.3d at 806; Torres v. State, 794 S.W.2d at 600. Rule

403 applies only when there exists a clear disparity between the degree of

prejudice arising from the offered evidence and its probative value. Davis v.

State, 329 S.W.3d at 806.

      The interview culminated with the appellant admitting that he fired the

gunshots at Ms. Daniel in an attempt to scare her for “road-raging” him. (R.R.

V:53-54; VIII:State’s Exhibit #53). Thus, it had probative value in establishing

his identity as the shooter. See Montgomery v. State, 810 S.W.2d 372, 387

(Tex. Crim. App. 1990) (identity is not just a fact of consequence, but a truly

elemental fact). It also helps prove the appellant’s motive that he was enraged

and wanted to frighten her. See Bush v. State, 628 S.W.2d 441, 444 (Tex.

Crim. App. 1982) (although not an essential element, motive is always

relevant as a circumstance tending to prove the commission of an offense).

                                       23
      The appellant does not articulate any undue tendency arising from his

interview’s admission that the jury’s guilty verdict was due to an emotional or

otherwise improper basis rather than due to this case’s facts. See Appellant’s

Brief, pages 12-13.       Thus, he has not shown “unfair” prejudice from its

admission.

      The laying of the predicate for admitting the appellant’s interviews took

four pages of the record where Detective Griesbach explained how they

conducted the videotaped interview, including advising the appellant of his

rights, and his authentication of the videotape. (R.R. V:46-49). Thus, the State

did not spend an inordinate amount of time developing this evidence.8

      The interview provided key details in confirming that the appellant was

the shooter and that he intentionally fired the shots at Ms. Daniel (R.R. V:53-

54; VIII:State’s Exhibit #53). While Ms. Walker testified that the appellant

fired the shots and multiple witnesses described the incidents leading up to

the shooting, it is only in the interview where the applicant explains that he

shot at Ms. Daniel to scare her for “road-raging” him – i.e., establishing his

state of intent and motive.


8     The State acknowledges that the interview lasted approximately ninety
      minutes. (R.R. V:53, VIII:State’s Exhibit #53). That time-length should not be
      deemed unduly lengthy given that this is a murder case.

                                           24
      Given its probative value, its lack of any unfair prejudice, their short

time duration and the State’s need, the trial court did not abuse its discretion

by admitting the appellant’s police interview into evidence. See Jennings v.

State, 2017 WL 3633992, at *10 (Tex. App. – Fort Worth August 24, 2017)

(not designated for publication) (admission of defendant’s police interview

not an abuse of discretion because its probative value in proving her

culpability was not substantially outweighed by the danger of unfair

prejudice); Lopez v. State, 2003 WL 1922430, at *6 (Tex. App. – Austin April

24, 2003, no pet.) (not designated for publication) (defendant’s voluntary

videotaped interview not so unfairly prejudicial that it substantially

outweighed its probative value).9

      The appellant’s third point of error should be overruled.



B.    Reversible Error Analysis

      The erroneous admission of evidence is generally non-constitutional

error, and is not grounds for reversal unless it affects an accused’s substantial

9     The appellant also alleges that the State failed to lay the proper predicate for
      their admission. See Appellant’s Brief, pages 6-7, 12, 14-17. The appellant
      has not preserved this issue for appellate review because he only made rule
      403 and hearsay objections at trial. See Allridge v. State, 762 S.W.2d at 157
      (nothing preserved for appellate review where error presented on appeal
      differs from objection raised at trial).


                                            25
rights by having a substantial and injurious effect or influence in determining

the jury's verdict. Rich v. State, 160 S.W.3d at 577; Solomon v. State, 49

S.W.3d at 365; King v. State, 953 S.W.2d at 271. Tex. R. App. P. 44.2(b).

Substantial rights are not affected by the erroneous admission of evidence if,

after examining the record as a whole, we have fair assurance that the error

did not influence the jury, or had but slight effect. Motilla v. State, 78 S.W.3d

at 355. Neither the State nor the appellant has the burden to demonstrate

harm; rather, the reviewing court should consider the entirety of the record in

assessing harm. Easley v. State, 424 S.W.3d at 542; Rich v. State, 160 S.W.3d

at 577.

       The appellant’s police interview did not substantially sway the jury’s

decision because it heard significant other evidence establishing his guilt:

   •      The appellant became enraged when Ms. Daniel pulled in front of
          him on Interstate 30 causing him to hit the brakes. (R.R. IV:158).

   •      The appellant raced down the interstate to catch Ms. Daniel and
          eventually pulled up beside her. (R.R. IV:38, 61-62, 159).

   •      The appellant slowed down his car and rolled down front
          passenger Bri’Anna Walker’s window using the automatic
          controls. (R.R. IV:62, 161).

   •      The appellant fired two shots out Ms. Walker’s window before
          speeding off. (R.R. IV:62-63, 162-63).


                                       26
   •      Ms. Daniel was hit in her left side just below her left arm by a
          bullet coming from the appellant’s car. (R.R. IV:43, 45-47, 88).

   •      Ms. Daniel pulled off to the side of the road and soon slumped
          over the center console with no pulse or breath, and an unreactive
          fixed stare. (R.R. IV:85-86).

   •      The bullet traveled through numerous internal organs and caused
          serious internal bleeding. (R.R. IV:205-06).

   •      Dr. Peerwani determined that the injuries from this bullet caused
          Ms. Daniel’s death. (R.R. IV:208).

   •      The police found bullet holes in the front and back driver’s side
          doors. (R.R. IV:86, 89, 113).

   •      Ms. Walker testified that the shots were not fired from the
          backseat and that her window was not rolled down by a backseat
          passenger. (R.R. IV:165).

Put simply, the jury heard substantial evidence that the appellant fired the

fatal gunshots.

       While the State discussed the appellant’s police interview – especially in

the context of motive – its arguments gave far greater focus to Bri’Anna

Walker’s testimony about the appellant firing the gun right in front of her,

Jasmine Thomas’ testimony about Brittany Daniel’s last moments, and

Malcolm Daniel’s description of his daughter’s humanity. (R.R. VI:13-15, 29-

31, 34). Thus, it cannot be said that the appellant’s videotaped interview

substantially swayed the jury’s guilty verdict such that its admission

                                       27
constitutes reversible error.

      The appellant’s third point of error should be overruled.




                                      28
                         CONCLUSION AND PRAYER

      The evidence is sufficient to support the appellant’s conviction, and he

suffered no reversible error from the admission of his recorded jail telephone

call or his videotaped interview.     Therefore, the State prays that the

appellant’s conviction be affirmed.


                                       Respectfully submitted,

                                       SHAREN WILSON
                                       Criminal District Attorney
                                       Tarrant County, Texas

                                       DEBRA WINDSOR,
                                       Chief, Post-Conviction

                                       /s/ Steven W. Conder
                                       STEVEN W. CONDER, Assistant
                                       Criminal District Attorney
                                       401 W. Belknap
                                       Fort Worth, Texas 76196-0201
                                       (817) 884-1687
                                       FAX (817) 884-1672
                                       State Bar No. 24073106
                                       COAAppellatealerts@tarrantcountytx.gov

                                      MICHELE HARTMANN, Assistant
                                      Criminal District Attorney


                          CERTIFICATE OF SERVICE

      A true copy of the State's brief have been electronically served on


                                      29
opposing counsel, the Hon. J. Warren St. John (jwlawyer@aol.com), 2020

Burnett Plaza, 801 Cherry Street, Unit No. 5, Fort Worth, Texas 76102-6810,

on this, the 21st day of December, 2017.

                                       /s/ Steven W. Conder      ____
                                       STEVEN W. CONDER


                       CERTIFICATE OF COMPLIANCE

      This document complies with the requirements of Tex. R. App. P. 9.4

because it has been prepared in a conventional typeface no smaller than 14-

point for text and 12-point for footnotes, and contains approximately 5160

words, excluding those parts specifically exempted, as computed by Microsoft

Office Word 2013 - the computer program used to prepare the document.

                                       /s/ Steven W. Conder__________
                                       STEVEN W. CONDER


c18.warren aspen.br




                                     30
