                                                                                        ACCEPTED
                                                                                   06-14-00079-CR
                                                                         SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                             3/12/2015 11:46:35 PM
                            No. 06-14-00079-CR                                     DEBBIE AUTREY
                       Trial Court Nos. 13F-1051-102                                        CLERK



                   IN THE COURT OF APPEALS
            FOR THE SIXTH SUPREME JUDICIAL DISTRICT FILED IN
                                                6th COURT OF APPEALS
                     AT TEXARKANA, TEXAS          TEXARKANA, TEXAS
                                                           3/13/2015 9:51:00 AM
Justin Sanders,                                               DEBBIE   AUTREY
                                                                     Appellant
                                                                   Clerk


v.

The State of Texas,                                                      State
              Appealed from the 102nd Judicial District Court
                          Bowie County, Texas




                        BRIEF FOR THE STATE
                  The State Does Not Request Oral Argument

                                         Respectfully submitted:

                                         Jerry D. Rochelle
                                         Criminal District Attorney
                                         Bowie County, Texas
                                         601 Main Street
                                         Texarkana, Texas 75501
                                   By:   Samantha J. Oglesby
                                         Assistant Criminal District Attorney
                                         Bowie County, Texas
                                         Texas Bar No. 24070362

                                         Attorneys for the State
                          In The Court of Appeals
                   For the Sixth Supreme Judicial District
                            At Texarkana, Texas

Justin Sanders,                          §
            Appellant                    §
                                         §               No. 06-14-00079-CR
                                         §
The State of Texas,                      §             BRIEF FOR THE STATE
             State                       §
                                         §


                              Identity of the Parties

      The following is a complete list of all the parties to the trial court’s judgment

as required by the provisions of Rule 38.2(a) of the Texas Rules of Appellate

Procedure:

   1. Defendant and Appellant:

      Justin Sanders

   2. Attorney for Appellant at trial:

      Rick Shumaker
      Texas Bar No. 18325300
      William Williams
      Texas Bar No. 24072804
      Bowie County Public Defender’s Office
      424 West Broad Street
      Texarkana, Texas 75501

   3. Attorney for Appellant on appeal:

      Craig Henry
      Texas Bar No. 09479260

                                             i
   723 Main Street
   Texarkana, Texas 75504

4. Appellee

   State of Texas

5. Attorney for the State of Texas at trial and on appeal:

   Samantha J. Oglesby
   Assistant Criminal District Attorney
   Bowie County District Attorney’s Office
   Texas Bar No. 24070362
   601 Main Street
   Texarkana, Texas 75501

6. Attorney for the State of Texas at trial:

   Kelley Crisp
   Assistant Criminal District Attorney
   Bowie County District Attorney’s Office
   Texas Bar No. 24062683
   601 Main Street
   Texarkana, Texas 75501

7. Presiding Judge at trial:

   The Honorable Bobby Lockhart
   District Court Judge
   102nd Judicial District
   Bowie County, Texas
   Bi-State Justice Building
   100 North State Line Avenue
   Texarkana, Texas 75501




                                       ii
                                              Table of Contents



Identity of the Parties and Counsel ......................................................................... i-ii

Table of Contents ................................................................................................. iii-iv

Index of Authorities ............................................................................................. v-xii

Statement of the Case................................................................................................. 1

Reply to Points of Error ......................................................................................... 2-3

Summary of the Argument..................................................................................... 4-9

Argument............................................................................................................ 10-87

                  Reply to Point of Error Number One ............................................ 10-18
                  The trial court did not err by overruling Appellant’s Motion to Quash
                  because the State was not required to allege the elements of the
                  underlying offense in an indictment for felony murder. Furthermore,
                  the indictment was sufficient to vest the trial court with subject-matter
                  jurisdiction.

                  Reply to Point of Error Number Two ........................................... 18-25
                  The trial court did not submit a fundamentally defective jury charge.
                  However, the error, if it was error, does not constitute egregious harm.

                  Reply to Point of Error Number Three ......................................... 25-35
                  Appellant failed to preserve this claim of error for appellate review.
                  However, the trial court did not violate Article 38.05 by commenting
                  on Appellant’s bond revocation during the punishment phase.
                  Furthermore, any error, if it was error, was harmless.

                  Reply to Point of Error Number Four ........................................... 35-41
                  Appellant failed to preserve his due-process claim for appellate
                  review. However, the trial court did not abuse its discretion in
                  denying Appellant’s request for a mistrial based on the prosecutors’
                  wearing of “fallen officer” wristbands
                                                           iii
                   Reply to Point of Error Number Five ............................................ 41-53
                   The trial court did not err by allowing the introduction of extraneous
                   offense evidence because it was relevant to show motive, intent,
                   identity and state of mind. Furthermore, any error, if it was error, was
                   harmless.

                   Reply to Point of Error Number Six ............................................. 53-64
                   The trial court did not error in overruling Appellant’s Motion to
                   Suppress evidence obtained from Defendant’s cellular phone when
                   Appellant gave valid consent for the seizure and search of his phone.
                   In addition to the valid consent, officers also searched pursuant to a
                   valid warrant.

                   Reply to Point of Error Number Seven ......................................... 64-74
                   Appellant failed to preserve error for appellate review. However, the
                   State’s attorneys did not engage in prosecutorial misconduct by
                   rebutting the defense’s claim that the witness had a motive or bias to
                   testify. Furthermore, any error, if it was error, is not reversible error.

                   Reply to Point of Error Number Eight .......................................... 74-85
                   The State produced legally sufficient evidence to connect Appellant to
                   the murder of Officer William Jason Sprague

Prayer for Relief ....................................................................................................... 86

Certificate of Compliance ........................................................................................ 87

Certificate of Service ............................................................................................... 88




                                                            iv
                                         Index of Authorities

Cases

Abdnor v. State, 871 S.W.2d 726 (Tex. Crim. App. 1994).................................... 18

Alamanza v. State, 686 S.w.2d 157 (Tex. Crim. App. 1984) ................................ 22

Anderson v. State, 301 S.W.3d 276 (Tex. Crim. App. 2009) ................................ 36

Anderson v. State, 635 S.W.2d 722 (Tex. Crim. App. 1982) ........................... 69-70

Aschbacher v. State, 61 S.W.3d 532 (Tex. App. – San Antonio 2001, pet. ref’d) 27

Bass v. State, 270 S.W.3d 557 (Tex. Crim. App. 2008) ........................................ 45

Bates v. State, 88 S.W.3d. 727 (Tex. App.-Tyler 2002, pet. ref’d) ....................... 56

Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 2013) .................................... 37

Bautista v. State, 363 S.W.3d 259 (Tex. App. – San Antonio 2012, no pet.) ....... 66

Becknell v. State, 720 S.W.2d 526 (Tex. Crim. App. 1986) ..................31-32, 34-35

Belt v. State, 127 S.W.3d 277 (Tex. App. – Fort Worth 2004, no pet.) ................ 36

Berger v. United States, 295 U.S. 78, 84 (1935) ................................................... 65

Bower v. State, 769 S.W.2d 887 (Tex. Crim. App. 1989) ..................................... 61

Brasfield v. State, 30 S.W.3d 502 (Tex. App. –Texarkana 2000, no pet.) ...... 26, 36

Brick v. State, 738 S.W.2d 676 (Tex. Crim. App. 1987) ............................ 36, 56-57

Britt v. State, No. 14-06-00131-Cr, 2007 WL 1251490 (Tex. App. Houston [14th
Dist.] April 26, 2007, pet. ref’d) ............................................................................ 44

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) .................................... 75

Buchanan v. State, 207 S.W.3d 772 (Tex. Crim. App. 2006) ............................... 35
                                                        v
Bundy v. Duggar, 850 F2d 1402, 1424 (11th Cir. 1988), cert. denied, 488 U.S.1034
(1989) ..................................................................................................................... 38

Burge v. State, 443 S.W.2d 720 (Tex. Crim. App. 1969), cert. denied, 396 U.S. 934
(1969) ..................................................................................................................... 28

Calton v. State, 132 S.W.3d 29 (Tex. App. – Fort Worth 2004, pet. ref’d) .......... 13

Cameron v. State, 401 S.W.2d 809 (Tex. Crim. App. 1966)................................. 11

Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000) ............................... 54

Chafin v. State, 95 S.W.3d 549 (Tex. App. – Austin 2002, no pet.) ..................... 75

Clark v. State, 365 S.W.3d 333 (Tex. Crim. App. 2012) ...................................... 35

Coble v. State, 330 S.W.3d 253 (Tex. Crim. App. 2010) ..................... 32-33, 52, 71

Colburn v. State, 966 S.W.2d 511 (Tex. Crim. App. 1998) ............................ 34, 53

Crane v. State, 786 S.W. 2d 338 (Tex. Crim. App. 1990)............................... 44, 50

Cuba v. State, 905 S.W.2d 729 (Tex. App. – Texarkana 1995, no pet.) ............... 72

De La Paz v. State, 279 S.W.3d 336 (Tex. Crim. App. 2009)............................... 42

DeVaughn v. State, 749 S.W.2d 62 (Tex. Crim. App. 1988) ................................ 10

Dinkins v. State, 894 S.W.2d 330 (Tex. Crim. App. 1995) ................................... 13

Dittman v. State, No. 05-11-00345-CR, 2012 WL 3139873 (Tex. App. – Dallas
August 3, 2012, pet. ref’d) .......................................................................................17

Dixon v. State, 2 S.W.3d 263 (Tex. Crim. App. 1998) ............................................ 69

Duron v. State, 956 S.W.2d 547 (Tex. Crim. App. 1997) ....................................... 15

Estelle v. Williams, 425 U.S. 501 (1976) ................................................................. 38

Ex Parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007) ...................................... 37
                                                              vi
Flippo v. West Virgina, 528 U.S.11 (1999) ............................................................. 55

Florida v. Jimeno, 500 U.S. 248 (1991) .................................................................. 55

Fuentes v. State, 991 S.W.2d 267 (Tex. Crim. App. 1999) .................................... 75

Goff v. State, 931 S.W.2d 537 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1171
(1997) .................................................................................................................26, 36

Graham v. State, 624 S.W.2d 785 (Tex. App. – Fort Worth 1981, no pet.)............ 31

Guerra v. State, No. 07-09-00283-CR, 2010 WL 2816215 (Tex. App. – Amarillo
July 19, 2010, pet. ref’d) .......................................................................................... 44

Guevara v. State, 152 S.W.3d 45 (Tex. Crim. App. 2004)...................................... 86

Guzman v. State, 955 S.W.2d 85 (Tex. Crim. App. 1997) ...................................... 54

Hammett v. State, 578 S.W.2d 699 (Tex. Crim. App. 1979) ................................... 13

Harris v. State, 790 S.W.2d 568 (Tex. Crim. App. 1989) ....................................... 72

Havard v. State, 800 S.W.2d 195 (Tex. Crim. App. 1989) ..................................... 26

Hernandez v. State, 219 S.W.3d 6 (Tex. App. – San Antonio 2006), aff’d, 273
S.W.2d 685 (Tex. Crim. App. 2008) ....................................................................... 68

Hodge v. State, 488 S.W.2d 779 (Tex. Crim. App. 1973) ....................................... 68

Holbrook v. Flynn, 475 U.S. 560 (1986) ........................................................... 37-38

Hollaway v. State, 446 S.W.3d 847 (Tex. App. – Texarkana 2014, no pet.) .......... 37

Howard v. State, 941 S.W.2d 102 (Tex. Crim. App. 1996) .................................... 37

Huffman v. State, 746 S.W.2d 212 (Tex. Crim. App. 1988).................................... 68

Ibarra v. State, 11 S.W.3d 189 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828
(2000) .................................................................................................................26, 36


                                                             vii
Jackson v. State, 548 S.W.2d 685 (Tex. Crim. App. 1977)..................................... 28

Jackson v. Virginia, 443 U.S. 307 (1979)................................................................ 75

Jiminez v. State, 298 S.W.3d 203 (Tex. App. – San Antonio 2009, pet. ref’d)....... 66

Johnson v. State, 72 S.W.3d 346 (Tex. Crim. App. 2002) ...................................... 52

Johnson v. State, 84 S.W.3d 726 (Tex. App. – Houston [1st Dist.] 2002, pet. ref’d)51

Johnson v. State, 932 S.W.2d 296 (Tex. App. –Austin 1996, pet. ref’d) ................ 50

Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) .................................... 32

Jonson v. State, 517 S.W.2d 170 (Tex. Crim. App. 1978) ...................................... 75

Jordan v. State, 1 S.W.3d 153 (Tex. Crim. App. 1999) .......................................... 13

Joslin v. State, 305 S.W.2d 351, 352 (Tex. Crim. App. (1957)............................... 56

Kerns v. State, 550 S.W.2d 91 (Tex. Crim. App. 1977) .......................................... 65

Kitchens v. State, 279 S.W.3d 733 (Tex. App. – Amarillo 2007, pet. ref’d)........... 20

Knox v. State, 934 S.W. 2d 678 (Tex. Crim. App. 1996) ........................................ 43

Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009) ....................................... 75

Lawrence v. State, 240 S.W.3d 912 (Tex. Crim. App. 2007) .................................. 10

Leday v. State, 983 S.W.2d 713 (Tex. Crim. App. 1998) ..................................33, 52

Linciciome v. State, 3 S.W.3d 644 (Tex. App. – Amarillo 1999, no pet.)............... 42

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) ........................................ 76

Mantooth v. State, 269 S.W.3d 68 (Tex. App. – Texarkana 2008, no pet.) ............ 15

Marks v. State, 617 S.W.2d 250 (Tex. Crim. App. 1981) ....................................... 27


                                                   viii
Marquez v. State, 725 S.W.2d 217 (Tex. Crim. App. 1987) ............................. 29-30

Marron v. United States, 275 U.S. 192 (1927) ........................................................ 60

Martin v. State, 176 S.W.3d 887 (Tex. App. – Fort Worth 2005, no pet.) .............. 51

Martinez v. State, 327 S.W.3d 727 (Tex. Crim. App. 2010) ................................... 42

Matson v. State, 819 S.W.2d 839 (Tex. Crim. App. 1991)................................ 75-76

Matz v. State, 21 S.W.3d 911 (Tex. App. – Fort Worth 2000, pet. ref’d) ............... 32

Mayes v. State, 816 S.W.2d 79 (Tex. Crim. App. 1991) ...................................33, 52

McGuire v. State, No. 01-11-01089-CR, 2012 WL 344952, at * 3 (Tex. App. –
Houston [1st Dist.] February 2, 1012, pet. ref’d) ..................................................... 17

Mestiza v. State, 923 S.W.2d 720 (Tex. App. – Corpus Christi 1996, no pet.) ....... 25

Middleton v. State, 125 S.W.3d 450 (Tex. Crim. App. 2003) ................................. 18

Montgomery v. State, 810 S.W. 2d 372 (Tex. Crim. App. 1991) ................42, 44, 48

Moore v. State, 295 S.W.3d 329 (Tex. Crim. App. 2009) ....................................... 25

Morales v. State, 32 S.W.3d 863 (Tex. Crim. App. 2002) .................... 32, 52, 71-72

Morfin v. State, 34 S.W.3d 664 (Tex. App.—San Antonio 2000, no pet.) ............. 54

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002) ........................................ 52

Nguyen v. State, 977 S.W.2d 450 (Tex. App. – Austin 1998), aff’d, 1 S.W.3d 694
(Tex. Crim. App. 1999)............................................................................................ 40

Peavey v. State, 248 S.W.3d 455 (Tex. App. - Austin 2008, pet. ref’d) ........... 26-27

Penry v. State, 903 S.W.2d 715 (Tex. Crim. App. 1995) ........................................ 65

Peters v. State, 31 S.W.3d 704 (Tex. App. – Houston [1st Dist.] 2000, pet. ref’d)52, 71


                                                         ix
Phelps v. State, 999 S.W.2d 512 (Tex. App. – Easland 1999, pet. ref’d.) .............. 42

Powell v. State, 189 S.W. 3d 285 (Tex. Crim. App. 2006) ...............................44, 47

Powell v. State, 63 S.W. 3d 435 (Tex. Crim. App. 2001) ....................................... 44

Resendez v. State, 160 S.W.3d 181, 189-90 (Tex. App. – Corpus Christi 2005, no
pet.)........................................................................................................................... 26

Riley v. California, -- U.S. --, 134 S.Ct. 2473 (2014)........................................ 58-59

Robbins v. State, 88 S.W.3d 256 (Tex. Crim. App. 2002) ...................................... 42

Robinson v. State, 35 S.W.3d 257 (Tex. App. – Texarkana 2000, pet. ref’d) ......... 42

Rogers v. State, 640 S.W.2d 248 (Tex. Crim. App. 1982) ...................................... 26

Rogers v. State, 725 S.W.2d 350 (Tex. App. – Houston [1st Dist.] 1987, no pet.)65-67

Romero v. State, 800 S.W. 2d 539 (Tex.Crim.App. 1990) ...................................... 51

Sharpe v. State, 648 S.W.2d 705 (Tex. Crim. App. 1983) ...................................... 28

Shelling v. State, 52 S.W.3d 213 (Tex. App. – Houston [1st Dist.] 2001, pet. ref’d)67

Simon v. State, 203 S.W.3d 581 (Tex. App. – Houston [14th Dist.] 2006, no pet.) . 32

Smith v. State, 502 S.W.2d 133 (Tex. Crim. App. 1973) ........................................ 11

Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011) ............................. 61-62

Stahl v. State, 749 S.W.2d 826 (Tex. Crim. App. 1998) ......................................... 68

State v. Mays, 967 S.W.2d 404 (Tex. Crim. App. 1998) ......................................... 10

State v. Moff, 154 S.W.3d 599 (Tex. Crim. App. 2004) .......................................... 10

State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011) ..................................... 55

Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990) ................................. 15-16
                                                                x
Swarb v. State, 125 S.W. 3d 672 (Tex. App.-Houston [1st Dist.] 2003, pet. dism’d)
.................................................................................................................................. 43

Teal v. State, 230 S.W.3d 172 (Tex. Crim. App. 2007) .............................. 16-17, 19

Tompkins v. State, 774 S.W.2d 195 (Tex. Crim. App. 1987) .................................. 13

Trejo v. State, 313 S.W.3d 870 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d)23

Turro v. State, 867 S.W.2d 43 (Tex. Crim. App. 1993) .......................................... 75

Vital v. State, Nos. 02-02-00421-CR, 02-02-00422-CR, 2003 WL 22966375 (Tex.
App. –Fort Worth December 18, 2003, no pet.) ...................................................... 44

Weatherred v. State, 15 S.W.3d 540 (Tex. Crim. App. 2000)................................. 42

Weed v. State, 129 S.W.3d 126 (Tex. Crim. App. 2004)......................................... 37

Werner v. State, 412 S.W.3d 542 (Tex. Crim. App. 2013)...................................... 52

West v. State, Nos. 05-04-01218-CR, 05-04-01219-CR, 2005 WL 1950822 (Tex.
App. – Dallas August 16, 2005, no pet.).................................................................. 44

Wheeler v. State, 67 S.W.3d 870 (Tex. Crim. App. 2002) ...................................... 42

Wilder v. State, 111 S.W.3d 249 (Tex. App. – Texarkana 2003, pet. ref’d) ........... 42

Williams v. State, 937 S.W.2d 479 (Tex. Crim. App. 1996) .............................34, 53

Wilson v. State, 71 S.W.3d 346 (Tex. Crim. App. 2002) ........................................ 67

Wilson v. State, 819 S.W.2d 662 (Tex. App. – Corpus Christi 1991, pet. ref’d) .... 65

Young v. State, 137 S.W.3d 65 (Tex. Crim. App. 2004) ...................................26, 37

Ytuarte v. State, No. 04-08-00357-CR, 2009 WL 1232327 (Tex. App. – San
Antonio May 6, 2009, pet. ref’d) ............................................................................. 45




                                                                 xi
Constitutions

Texas Constitution, Article I, Section 9 ................................................................... 55

Texas Constitution, Article V, Section 12 ............................................................... 15

U.S. Constitution, Amendment IV.........................................................55, 60, 62, 69

U.S. Constitution, Amendment VI ........................................................................... 48

U.S. Constitution, Amendment XIV ........................................................................ 38


Statutes

Tex. Code Crim. Pro. Art. 2.01 ................................................................................ 40

Tex. Code Crim. Pro. Art. 21.03 .............................................................................. 13

Tex. Code Crim. Pro. Art. 38.36 ........................................................................ 45-46

Tex. Code Crim. Pro. Art. 42.12 .............................................................................. 30

Tex. Code Crim. Pro. Art. 38.04 ............................................................ 12-13, 17, 19

Tex. Code Crim. Pro. Art. 38.05 ............................................................. 25-29, 31-32

Tex. Pen. Code sec. 12.32 ........................................................................................ 30

Tex. Pen. Code sec. 19.02 ........................................................................................ 30

Tex. Pen. Code sec. 38.04 ........................................................................................ 75

Tex. R. App. Pro. 33.1 ...........................................................................26, 35, 37, 65

Tex. R. App. Pro. 44.2 ...........................................................................32, 52, 61, 71

Tex. R. Evid. 403 ...............................................................................................47, 44

Tex. R. Evid. 404 ............................................................................................... 43-44
                                                         xii
                              Statement of the Case

      Justin Sanders, hereinafter referred to as “Appellant,” was convicted by a

jury of the felony offenses of Murder in the 102nd Judicial District Court of Bowie

County, Texas, the Honorable Bobby Lockhart presiding.

      The jury assessed Appellant’s punishment at confinement for thirty (30)

years in the Institutional Division of the Texas Department of Criminal Justice

along with a fine of $5,000, and the Judge sentenced Appellant accordingly.

      Appellant then perfected appeal to this Honorable Court. He now appeals

the judgment of the trial court on eight points of error.




                                           1
                            Reply to Points of Error

                     REPLY TO POINT OF ERROR NUMBER ONE:

The trial court did not err by overruling Appellant’s Motion to Quash because the
State was not required to allege the elements of the underlying offense in an
indictment for felony murder. Furthermore, the indictment was sufficient to vest
the trial court with subject-matter jurisdiction.

                    REPLY TO POINT OF ERROR NUMBER TWO:

The trial court did not submit a fundamentally defective jury charge. However, the
error, if it was error, does not constitute egregious harm.

                    REPLY TO POINT OF ERROR NUMBER THREE:

Appellant failed to preserve this claim of error for appellate review. However, the
trial court did not violate Article 38.05 by commenting on Appellant’s bond
revocation during the punishment phase. Furthermore, any error, if it was error,
was harmless.

                    REPLY TO POINT OF ERROR NUMBER FOUR:

Appellant failed to preserve his due-process claim for appellate review. However,
the trial court did not abuse its discretion in denying Appellant’s request for a
mistrial based on the prosecutors’ wearing of “fallen officer” wristbands.

                    REPLY TO POINT OF ERROR NUMBER FIVE:

The trial court did not err by allowing the introduction of extraneous offense
evidence because it was relevant to show motive, intent, identity and state of mind.
Furthermore, any error, if it was error, was harmless.

                     REPLY TO POINT OF ERROR NUMBER SIX:

The trial court did not error in overruling Appellant’s Motion to Suppress evidence
obtained from Defendant’s cellular phone when Appellant gave valid consent for
the seizure and search of his cellular telephone. In addition to the valid consent,
officers also searched pursuant to a valid warrant.

                                         2
                    REPLY TO POINT OF ERROR NUMBER SEVEN:

Appellant failed to preserve error for appellate review. However, the State’s
attorneys did not engage in prosecutorial misconduct by rebutting the defense’s
claim that the witness had a motive or bias to testify. Furthermore, any error, if it
was error, is not reversible error.

                    REPLY TO POINT OF ERROR NUMBER EIGHT:

The State produced legally sufficient evidence to connect Appellant to the murder
of Officer William Jason Sprague.




                                         3
                          Summary of the Argument

                      REPLY TO POINT OF ERROR NUMBER ONE:

      The trial court did not err by overruling Appellant’s Motion to Quash
      because the State was not required to allege the elements of the
      underlying offense in an indictment for felony murder. Furthermore,
      the indictment was sufficient to vest the trial court with subject-matter
      jurisdiction.

      Paragraph Two of the indictment properly charged Appellant with felony

murder based on the underlying felony offense of Evading Arrest or Detention.

Because the State is not required to allege the elements of an underlying felony

offense in an indictment charging felony murder, the indictment sufficiently

provided notice to Appellant. Furthermore, the indictment was sufficient to vest

the trial court with subject-matter jurisdiction because the language of the

indictment was sufficient to raise Evading Arrest or Detention to a felony.       The

indictment as a whole charges Appellant with enough clarity and specificity to

identify the penal statute under which the State intended to prosecute.



                      REPLY TO POINT OF ERROR NUMBER TWO:

      The trial court did not submit a fundamentally defective jury charge.
      However, the error, if it was error, does not constitute egregious
      harm.

      The jury charge did not allow the jury to convict Appellant based on an

unindicted offense.   Based on the charged offense and the evidence presented at

                                          4
trial, the trial court properly instructed the jury on the law of felony evading arrest

or detention. Additionally, Appellant has failed to demonstrate that he suffered

any actual harm. Appellant was not deprived of adequate notice in which to

prepare a defense. Accordingly, the error, if any, is harmless error.



                    REPLY TO POINT OF ERROR NUMBER THREE:

      Appellant failed to preserve this claim of error for appellate review.
      However, the trial court did not violate Article 38.05 by commenting
      on Appellant’s bond revocation during the punishment phase.
      Furthermore, any error, if it was error, was harmless.

      Because Appellant failed to object at the first available opportunity and to

request an instruction to disregard, this claim of error is waived.     However, the

trial court did not violate Article 38.05 because the decision to revoke Appellant’s

bond was within the sound discretion of the trial court. Considering the nature of

the offense for which Appellant had been convicted and the applicable punishment

range, the record supports the trial court’s decision to revoke Appellant’s bond.

Furthermore, any error in revoking Appellant’s bond in the presence of the jury

was harmless. Similar evidence was admitted at trial, the trial judge instructed the

jury not to consider his rulings as comments on the weight of the evidence, and the

comments were not emphasized by the State. This Court has fair assurance that the

trial court’s ruling, if error, did not have a substantial and injurious effect or



                                          5
influence in determining the jury’s verdict. Accordingly, the error, if any, is

harmless error.



                     REPLY TO POINT OF ERROR NUMBER FOUR:

      Appellant failed to preserve his due-process claim for appellate
      review. However, the trial court did not abuse its discretion in
      denying Appellant’s request for a mistrial based on the prosecutors’
      wearing of “fallen officer” wristbands.

      Because Appellant failed to request an instruction to disregard, Appellant’s

due-process claim is waived. Additionally, Appellant’s objection at trial does not

comport with the claim of error on appeal. Even if Appellant properly preserved

this claim for appellate review, the trial court did not abuse its discretion in

overruling Appellant’s request for a mistrial.         The wristbands were not so

inherently prejudicial as to pose an unacceptable threat to Appellant’s right to a fair

trial, therefore, Appellant’s due process rights were not violated.



                     REPLY TO POINT OF ERROR NUMBER FIVE:

      The trial court did not err by allowing the introduction of extraneous
      offense evidence because it was relevant to show motive, intent,
      identity and state of mind. Furthermore, any error, if it was error,
      was harmless.

      The trial court did not abuse its discretion by allowing evidence of

Appellant’s drug activities and transactions. Such evidence was relevant to show


                                          6
intent to strike the officer with his motor vehicle and/or intent or motive to evade

arrest or detention.    Furthermore, any error in admitting this evidence was

harmless. Similar evidence was admitted at trial. In light of the trial court’s

limiting instruction and the substantial evidence of Appellant’s guilt, this Court has

fair assurance that the admission of the complained-of evidence, if error, did not

have a substantial and injurious effect or influence in determining the jury’s

verdict. Accordingly, the error, if any, is harmless error.



                       REPLY TO POINT OF ERROR NUMBER SIX:

      The trial court did not error in overruling Appellant’s Motion to
      Suppress evidence obtained from Defendant’s cellular phone when
      Appellant gave valid consent for the seizure and search of his phone.

      The trial court did not err in overruling Appellant’s Motion to Suppress

evidence obtained from the search of his cellular phone. The detectives obtained

the phone and consent to search it in a lawful manner. Although Appellant gave

consent, the cellular phone was searched pursuant to a valid search warrant.

Furthermore, the phone was seized incident to a lawful arrest. Thus, was valid

and, as a result, any evidence was lawfully discovered. However, any error in

admitting evidence recovered from the phone did not contribute to the Appellant’s

conviction beyond a reasonable doubt and was therefore harmless.




                                          7
                     REPLY TO POINT OF ERROR NUMBER SEVEN:

      Appellant failed to preserve error for appellate review. However, the
      State’s attorneys did not engage in prosecutorial misconduct by
      rebutting the defense’s claim that the witness had a motive or bias to
      testify. Furthermore, any error, if it was error, is not reversible error.

      Appellant waived his claim of prosecutorial misconduct by failing to make a

specific objection and requesting an instruction to disregard.           The Rogers

exception to preservation does not apply because the record does not support a

finding that the prosecutors acted in bad faith or intended to inflame the jury.

Thus, he has waived any alleged error. Nevertheless, the State questioned the

witness about threats he had received to rebut the evidence of bias or motive

elicited during defense counsel’s cross-examination of the witness as permitted by

Rule 613(b) of the Texas Rules of Evidence. Furthermore, assuming arguendo that

the prosecutors engaged in prosecutorial misconduct, the State’s redirect-

examination of the witness did not constitute reversible error. The question was

not harmful to Appellant and was not of such a character so as to suggest the

impermissibility of withdrawing the impression produced.            Accordingly, the

error, if any, is harmless.



                     REPLY TO POINT OF ERROR NUMBER EIGHT:

      The State produced legally sufficient evidence to connect Appellant to
      the murder of Officer William Jason Sprague.


                                          8
      Appellant’s conviction for felony murder is supported by legally sufficient

evidence. This evidence came directly from Appellant and several eyewitnesses.

In addition, the eyewitness testimony was corroborated by medical, physical and

circumstantial evidence. Therefore, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.




                                        9
                                        Argument

                       Reply to Point of Error Number One

       The trial court did not err by overruling Appellant’s Motion to Quash
       because the State was not required to allege the elements of the
       underlying offense in an indictment for felony murder. Furthermore,
       the indictment was sufficient to vest the trial court with subject-matter
       jurisdiction.

                              Argument and Authorities

A. Standard of Review

       The sufficiency of an indictment is a question of law.1 Therefore, a trial

court’s decision whether or not to quash an indictment is reviewed under a de novo

standard.2    The charging instrument must convey sufficient notice to allow the

accused to prepare his defense.3 A motion to quash should be granted only when

the language concerning the defendant’s conduct is so vague or indefinite as to

deny the defendant notice of the acts he allegedly committed.4

B. Application of Law to Facts

       In his first point of error, Appellant asserts that the trial court erred in failing

to grant Appellant’s motion to quash the indictment. Appellant argued in a pretrial

hearing that the indictment lacked specificity in regard to the second paragraph

charging Appellant with Felony Murder based on the underlying felony offense of

1
  State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004).
2
  Lawrence v. State, 240 S.W.3d 912, 915 (Tex. Crim. App. 2007).
3
  State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998).
4
  DeVaughn v. State, 749 S.W.2d 62, 67 (Tex. Crim. App. 1988).
                                             10
Evading Arrest or Detention. Appellant argued that he had insufficient notice to

know the nature of the charged offense. Secondarily, Appellant argues that the

indictment was insufficient to vest the trial court with subject-matter jurisdiction.

    1. Sufficient Notice

       In the face of a timely motion to quash, the indictment must allege on its

face the facts necessary to show that an offense was committed, to bar subsequent

prosecution for the same offense, and to give the defendant notice of the offense

with which he is charged.5 “The general rule is that a motion to quash will be

allowed if the facts sought are essential to give notice. However, unless a fact is

essential, the indictment need not plead evidence relied on by the state.” 6 The

indictment will be read as a whole in determining whether it sufficiently charges an

offense.7

       Here, the indictment charged Appellant with committing the offense of

Felony Murder with the underlying felony offense of Evading Arrest or Detention.

The second paragraph of the indictment reads:

       [Appellant] heretofore on or about June 14, 2013, did then and there,
       intentionally commit or attempt to commit a felony offense, to-wit:
       Evading Arrest or Detention, and while in the course of and in
       furtherance of the commission or attempt of said offense did then and
       there commit or attempt to commit an act clearly dangerous to human

5
  Id.
6
  Id. (quoting Smith v. State, 502 S.W.2d 133 (Tex. Crim. App. 1973); Cameron v. State, 401
S.W.2d 809 (Tex. Crim. App. 1966) (emphasis in original)).
7
  Id.
                                              11
       life, namely, striking Officer William Jason Sprague with a motor
       vehicle, which caused the death of Officer William Jason Sprague.
       (C.R. Vol. II, p. 77).

The indictment was handed down on December 19, 2013. (C.R. Vol. II, p. 29, 77).

Appellant filed a motion to quash the indictment on March 18, 2014 – six days

prior to trial. (C.R. Vol. II, p. 90). Although the indictment was sufficient to give

Appellant notice even in the face of a timely motion to quash, the State offered to

amend the indictment8 to add the additional language requested by the defense.

(R.R. Vol. VII, p. 24-25). Appellant objected to any amendment to the indictment.

(R.R. Vol. VII, p. 21-22). Appellant now argues that his conviction should be

reversed because the indictment failed to provide notice of the underlying felony

offense of Evading Arrest or Detention.

       Appellant argues that the indictment failed to allege an underlying predicate

felony. In his brief and during the hearing on the motion to quash the indictment,

Appellant averred that the timely filed motion to quash required to state to specify

which subsection of Penal Code sec. 38.04 the State was using to elevate the

offense of Evading Arrest or Detention to a felony. (R.R. Vol. XII, p. 21, 25-26).

However, Appellant cites no authority, nor has the State found any, which would

require the State to allege the elements of the underlying felony in a charge of

felony murder even in the face of a timely motion to quash the indictment.

8
  Id. (When a motion to quash the indictment has been presented, the State may properly amend
the indictment to reflect the requested information.).
                                              12
       Appellant claimed during the hearing on the motion to quash that the State’s

indictment was deficient because “use of a motor vehicle” was not alleged in

Paragraph Two of the indictment. (R.R. Vol. XII, p. 21). However, “use of a

motor vehicle” is an element to the offense of Evading Arrest or Detention.9 As a

general rule, any element that must be proved should be stated in the indictment. 10

However, it is well-established that an indictment that charges one offense during

the commission of another crime need not allege the elements of the underlying

offense.11 An indictment for felony murder is not required to allege the constituent

elements of the underlying felony.12 Given that the State need not allege elements

of the underlying offense in an indictment for felony murder, Paragraph Two of the

indictment was sufficient to provide Appellant notice even in the face of a timely

motion to quash.

       Additionally, the indictment as a whole made clear that the State was

proceeding on a theory of felony Evading Arrest or Detention (with a Motor

Vehicle) under Penal Code sec. 38.04 (b)(2)(A).                   The indictment charged

Appellant with committing the underlying “felony offense” of “Evading Arrest or

9
  Calton v. State, 132 S.W.3d 29, 32-33 (Tex. App. – Fort Worth 2004, pet. ref’d).
10
   See Tex. Code Crim. Pro. Art. 21.03; Dinkins v. State, 894 S.W.2d 330, 338 (Tex. Crim. App.
1995).
11
   Jordan v. State, 1 S.W.3d 153, 158 (Tex. Crim. App. 1999)(citing Tompkins v. State, 774
S.W.2d 195, 206 (Tex. Crim. App. 1987), aff’d by an equally divided court, 490 U.S.74 (1989)
(per curium)); Hammett v. State, 578 S.W.2d 699, 708 (Tex. Crim. App. 1979)(trial court did not
err by refusing to grant motion to quash capital murder indictment which did not allege elements
of underlying felony offense of robbery).
12
   Thompkins, 774 S.W.2d at 206.
                                               13
Detention.” This language put Appellant on notice that the State was proceeding

on one of the theories of felony Evading Arrest or Detention rather than

misdemeanor Evading Arrest or Detention.         The indictment also alleged that

Appellant caused the death of the victim “by striking Officer William Jason

Sprague with a motor vehicle.” This language charged Appellant with using a

motor vehicle during the commission of the offense and causing death. In looking

at the indictment as a whole, it is clear that the State charged Appellant with

committing the underlying felony offense of Evading Arrest or Detention. The

language concerning Appellant’s conduct was not so vague or indefinite as to deny

Appellant notice of the offense in which he was being charged. Therefore, the

indictment was sufficient to provide Appellant with enough notice to anticipate the

State’s evidence, prepare a proper defense, and bar subsequent prosecution. The

trial court did not err in denying Appellant’s motion to quash the indictment.

   2. Subject Matter Jurisdiction

      Appellant also complains that the indictment was insufficient to vest the trial

court with subject-matter jurisdiction. In his brief, Appellant does not argue that

the indictment fails to allege Felony Murder, the charged offense. However,

Appellant avers that Paragraph Two of the indictment did not allege with enough

specificity the underlying felony of Evading Arrest or Detention.




                                         14
       Article V, Section 12 of the Texas Constitution defines an indictment as “a

written instrument presented to a court by a grand jury charging a person with the

commission of an offense.” The presentment of an indictment invests the trial

court with jurisdiction over the cause.13 However, an indictment which meets the

definition of Article v, Section 12 is sufficient to vest the trial court with

jurisdiction even if the indictment is defective. The omission of an element does

not prevent the instrument from being an indictment.14                The Texas Court of

Criminal Appeals held in Studer v. State that “the language of Art. V, § 12,

‘charging a person with the commission of an offense,’ does not mean, that each

element of the offense must be alleged in order to have an indictment or

information as contemplated by Art. V, § 12.”15 “[A] written instrument is an

indictment or information under the Texas Constitution if it accuses someone with

a crime with enough clarity and specificity to identify the penal statute under

which the State intends to prosecute, even if the instrument is otherwise

defective.”16 If the indictment is sufficient to identify the penal statute under

which the State intends to prosecute, the error is not a “fundamental” error.17

       Appellant contends that Paragraph Two of the indictment is insufficient to

vest the trial court with subject-matter jurisdiction because it fails to allege the
13
   Texas Constitution, Article V, Section 12.
14
   Mantooth v. State, 269 S.W.3d 68, 72 (Tex. App. – Texarkana 2008, no pet.)
15
   Id. (quoting Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990)).
16
   Id. (quoting Duron v. State, 956 S.W.2d 547, 550-51 (Tex. Crim. App. 1997)).
17
   Id.
                                              15
elements of felony Evading Arrest or Detention as the underlying felony for

Felony Murder. Contrary to Appellant’s contentions, the indictment as a whole

charges Appellant with enough clarity and specificity to identify the penal statute

under which the State intended to prosecute.

       Much like the instant case, the defendant in Teal v. State argued his

indictment failed to charge a felony.18 The defendant was charged with Hindering

Apprehension, and he argued that his indictment failed to allege an element to

elevate the offense from a misdemeanor to a felony.19 Specifically, the defendant

argued his indictment did not allege “that [defendant] had knowledge of Curtis

Brown’s felony fugitive status.”20 The indictment alleged the defendant “with

intent to hinder the arrest, prosecution, or punishment of Curtis Brown for the

offense of Failure to Comply with Registration as a Sex Offender” – a felony

offense.21 The state argued that the language of the indictment “clearly indicates

[the state’s] intent to prosecute the defendant for the felony offense of Hindering

Apprehension.”22       The Court of Criminal Appeals agreed and held that the

indictment as a whole can be read as charging the defendant with the felony

offense of Hindering Apprehension.23 Thus, the indictment, although missing an


18
   Teal v. State, 230 S.W.3d 172, 180 (Tex. Crim. App. 2007).
19
   Id.
20
   Id.
21
   Id.
22
   Id.
23
   Id. at 182.
                                              16
element of the offense, charged the defendant with enough specificity to vest the

trial court with subject-matter jurisdiction and give the defendant notice that the

state intended to prosecute him for a felony.24

       Here, the indictment charges Appellant with the underlying “felony offense”

of “Evading Arrest or Detention” and “caus[ing] the death” of Officer William

Jason Sprague by “striking Officer William Jason Sprague with a motor vehicle...”

Much like the indictment in Teal, the indictment as a whole clearly charges

Appellant with committing the underlying felony offense of Evading Arrest or

Detention. The face of the indictment accuses Appellant with a crime with enough

clarity and specificity to identify the specific penal statue under which the state

intends to prosecute – Felony Murder under Penal Code § 19.01(b). Additionally,

the allegation specifically alleges the underlying felony of Evading Arrest or

Detention under Penal Code § 38.04. Therefore, the indictment was sufficient to

vest the trial court with subject-matter jurisdiction.

       As previously stated in Reply to Point of Error Number One Part B(1), an

indictment for felony murder need not allege the elements of the underlying felony.

Thus, an indictment of felony urder is not fundamentally defective if it does not

charge all of the elements of the underlying felony. 25 Given that “use of a motor


24
 Id.
 See Dittman v. State, No. 05-11-00345-CR, 2012 WL 3139873, * 4 (Tex. App. – Dallas
25

August 3, 2012, pet. ref’d) (not designated for publication) (citing McGuire v. State, No. 01-11-
                                                17
vehicle” is an element to the offense of Evading Arrest or Detention, Paragraph

Two of the indictment was not fundamentally defective. Therefore, the indictment

was sufficient to vest the trial court with subject-matter jurisdiction.

       For these reasons, Appellant’s first point of error should be overruled.



                       Reply to Point of Error Number Two

       The trial court did not submit a fundamentally defective jury charge.
       However, the error, if it was error, does not constitute egregious
       harm.

                               Argument and Authorities

A. Standard of Review

       Appellate review of a purported error in the jury charge involves a two-step

process. 26 First, the reviewing court must determine whether the jury instruction is

erroneous.27 Second, if error occurred, an appellate court must analyze that error

for harm.28

B. Application of Law to Facts

       Appellant argues that the trial court omitted an essential element of the

underlying offense of Evading Arrest or Detention in the jury charge. Appellant


01089-CR, 2012 WL 344952, at * 3 (Tex. App. – Houston [1st Dist.] February 2, 1012, pet.
ref’d)(not designated for publication)).
26
   Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); Middleton v. State, 125 S.W.3d
450, 453 (Tex. Crim. App. 2003).
27
   Middleton, 125 S.W. at 453.
28
   Id.
                                             18
cites Justice P.J. Keller’s concurring opinion in Teal v. State to support his position

that the court’s charge was fundamentally defective. Justice Keller noted that an

indictment free of defect could lead to charging error when the jury charge allows

a jury to render judgment on an offense not authorized by the indictment.29 For

example, a jury charge allowing the jury to convict a defendant for aggravated

robbery when the indictment only alleges robbery, even if the indictment was

without defect, is erroneous.30 That is not the case here.

         In his brief, Appellant again argues that the indictment failed to provide

notice of the charged offense and also failed to allege facts sufficient to elevate an

otherwise misdemeanor offense to felony status.              Because the application

paragraph of the jury charged tracked the language of the indictment, Appellant

avers that the jury was allowed to convict him of offense for which he was not

charged. However, as discussed in Reply to Point of Error Number One, an

indictment for felony murder need not allege the elements of the underlying felony

offense. The indictment was also sufficient to provide Appellant notice of the

offense he was alleged to have committed, felony murder with the underlying

felony offense of Evading Arrest or Detention.

         Section 38.04 of the Penal Code provides several scenarios in which this

otherwise misdemeanor offense would elevate to a felony. Appellant argues that

29
     Teal, 230 S.W.3d at 184.
30
     Id.
                                          19
the State was required to plead in the indictment its theory of felony Evading or

Arrest or Detention. However, this additional language is not required in a felony

murder indictment. The Amarillo Court of Appeals was faced with a similar

situation in Kitchens v. State.31 The defendant argued that the state was required to

plead in a capital murder indictment the theory of burglary, the underlying felony

offense, it intended to prove.32 Without requiring the state to plead its theory of the

underlying felony offense, the defendant argued that he had insufficient notice to

properly prepare a defense.33 Considering that the state is not required to plead the

elements of an underlying felony, the Court held that the indictment was sufficient

even if it required the defendant to prepare a defense based on multiple theories of

the underlying felony.34

       In Kitchens, the defendant also argued that the jury charge was

fundamentally defective for submitting the definition of burglary with intent to

commit assault and thereby allowing the jury to convict him on a theory of

burglary not alleged in the indictment.35 In holding that the charge neither required

nor permitted proof different from that required by the indictment, the Court

reasoned:



31
   Kitchens v. State, 279 S.w.3d 733 (Tex. App. – Amarillo 2007, pet. ref’d).
32
   Id. at 735.
33
   Id. at 736.
34
   Id.
35
   Id.
                                               20
          The indictment requires proof of murder intentionally committed “in
          the course of committing or attempting to commit the offense of
          burglary…” In order to understand the concept of burglary, the jury
          was entitled to a statutorily correct definition of burglary. Because the
          indictment need not allege the specific theory of burglary relied upon
          by the prosecution, the trial court was limited, not by any specific
          allegation, but by the evidence. The evidence introduced in the cause
          supported the State’s theory that [defendant] entered the [victim’s]
          residence without consent and committed or attempted to commit the
          offense of assault.36

If the law allows the State to submit an indictment without pleading the elements

of the underlying offense, then it cannot be argued that a jury charge based on such

an indictment is fundamentally defective. Requiring otherwise would invite error.

          Here, the felony murder indictment required proof that Appellant caused the

death of Officer William Jason Sprague while in the course of committing the

felony offense of Evading Arrest or Detention (or Aggravated Assault on a Public

Servant as alleged in Paragraph One). Testimony and evidence produced at trial

showed that Appellant was operating a motor vehicle when he struck and caused

the death of Officer Sprague while committing either Evading Arrest or Detention

or Aggravated Assault on a Public Servant. Based on the evidence, the trial court

informed the jury that Evading Arrest or Detentions is a felony “if the actor uses a

vehicle in flight or another person suffers serious bodily injury…” (R.R. Vol. XIII,

p. 8). Furthermore, Appellant was provided notice of the State’s theory of felony

Evading Arrest or Detention in the indictment based on the language “striking

36
     Id. at 737.
                                             21
Officer William Jason Sprague with a motor vehicle, which cause the death of

Officer William Jason Sprague.” Although the indictment was not required to

plead the elements or theory of the underlying felony offense, the indictment in

this cause provided Appellant with sufficient notice to prepare a defense.

       Because the State was not required to plead the elements of the underlying

felony, the trial court did not submit a fundamentally defective charge to the jury.

C. Harm Analysis

       The degree of harm required for reversal depends on whether the error was

preserved in the trial court.37 Here, Appellant concedes in his brief that he did not

object to the jury charge at trial. When an alleged error is raised for the first time

on appeal, a defendant must show that the harm resulting from the error was

egregious – the error was so harmful that the defendant was denied a fair and

impartial trial.38

       In determining whether a defendant was deprived of a fair and impartial

trial, an appellate court reviews the entire jury charge, the state of the evidence,

including any contested issues and weight of probative evidence, the argument of

counsel, and any other relevant information revealed by the record of the trial as a

whole.39    Errors which result in egregious harm are those that affect the very basis


37
   Id.
38
   Alamanza v. State, 686 S.w.2d 157, 171 (Tex. Crim. App. 1984).
39
   Id.
                                             22
of the case, deprive the defendant of a valuable right, vitally affect the defensive

theory, or make a case for conviction clearly and significantly more persuasive.40

The purpose of this review is to illuminate any actual, not merely theoretical, harm

to the defendant.41

       A review of the charge itself reveals no error. However, Appellant claims

that the jury charge error, if it was error, caused egregious harm and cites Trejo v.

State to support his position.42 In Trejo, the defendant alleged error in the trial

court’s submission of aggravated assault as a lesser-included offense although he

was indicted for aggravated sexual assault.43 Because aggravated assault was not a

lesser-included offense of aggravated sexual assault in this instance, the Court held

the trial court erred in submitting the charge to the jury and caused the defendant

egregious harm because the jury was allowed to convict the defendant bases on an

uncharged offense.44          The instant case does not parallel Trejo as Appellant

suggests. Appellant does not allege that the trail court erroneously submitted a

lesser-included offense to the jury. Additionally, the court’s charge did not allow

the jury to convict Appellant for an unindicted offense.             Consequently, Appellant

has not suffered egregious harm.



40
   Id at 172.
41
   Id at 174.
42
   Trejo v. State, 313 S.W.3d 870 (Tex. App. – Houston [14th Dist.] 2010, pet. ref’d).
43
   Id. at 871.
44
   Id. at 872, 874.
                                                23
      As fully discussed in Reply to Point of Error Number Eight, the evidence

submitted at trial was legally sufficient to support Appellant’s conviction for

felony murder under both Paragraph One and Paragraph Two of the indictment.

Appellant argues that the indictment’s insufficient notice prevented him from

preparing an adequate defense.        However, the indictment sufficiently placed

Appellant on notice of the charged offense and allowed him to prepare a defense.

From opening statement to closing argument, Appellant strenuously defended

against the allegations in Paragraph Two. Appellant argued that Officer Sprague

was not attempting to detain Appellant but merely directing traffic. (R.R. Vol. IX,

p. 16, 17-18; Vol. XIII, p. 46). Because he was convicted of an indicted offense,

the evidence at trial support the jury’s verdict of guilty and Appellant presented an

adequate defense, no harm can be shown based on an alleged lack of notice.

      The arguments of counsel also do not weigh in favor of a finding of

egregious harm. The State argued Appellant intentionally struck the officer with a

motor vehicle in an attempt to commit aggravated assault on a public servant.

Alternatively, the State argued Appellant was attempting to evade arrest or

detention when he ran over Officer Sprague. Both scenarios were sufficiently

plead in the indictment; therefore, the State did not ask the jury to convict

Appellant of an unindicted offense.




                                         24
          In reviewing the entire jury charge, the trial court correctly set forth the

elements of the offense and properly charged the jury on the law of the case.

Appellant has failed to establish that he has suffered any actual harm by the trial

court’s jury instructions. As such, Appellant was not denied a fair and impartial

trail and was, therefore, not egregiously harmed.

          For these reasons, Appellant’s second point of error should be overruled.



                        Reply to Point of Error Number Three

          Appellant failed to preserve this claim of error for appellate review.
          However, the trial court did not violate Article 38.05 by commenting
          on Appellant’s bond revocation during the punishment phase.
          Furthermore, any error, if it was error, was harmless.

                                 Argument and Authorities

A. Preservation of Error

          To properly preserve error with regard to evidence for appellate review, a

defendant must have made a timely request, objection, or motion, with sufficient

specificity to make the trial court aware of the nature of the complaint and secure a

ruling.45      The contemporaneous objection requirement encompasses improper

comments by the trial court on the weight of the evidence.46 Therefore, failure to

timely object to the trial court’s comments on the weight of the evidence waives a


45
     Tex. R. App. Pro. 33.1(a); Moore v. State, 295 S.W.3d 329, 333 (Tex. Crim. App. 2009).
46
     Mestiza v. State, 923 S.W.2d 720, 724 (Tex. App. – Corpus Christi 1996, no pet.).
                                                25
claim of error on appeal.47 As a general rule, appellate courts will not consider any

error which counsel for the accused could have called, but did not call, to the

attention of the trial court at the time when such error could have been avoided or

corrected by the trial court.48 Furthermore, the objection raised on appeal must be

the same as the objection raised at trial.49 Where a trial objection does not comport

with the issue raised on appeal, error is not preserved for review and is waived.50

       To preserve for appellate review a claim that the trial court violated Article

38.05 of the Texas Code of Criminal Procedure, the complaining party must timely

object at trial that the comments violated Article 38.05.51 In addition, a party who

fails to request an instruction to disregard will have forfeited appellate review of

that class of events that could have been “cured” by such an instruction. 52 A

party’s failure to timely object generally waives all error unless the statement is so

prejudicial that no instruction could have cured the harm. 53                    Generally, an




47
   See Havard v. State, 800 S.W.2d 195, 211 (Tex. Crim. App. 1989).
48
   Rogers v. State, 640 S.W.2d 248, 264 (Tex. Crim. App. 1982).
49
   Ibarra v. State, 11 S.W.3d 189, 197 (Tex. Crim. App. 1999), cert. denied, 531 U.S. 828
(2000); Brasfield v. State, 30 S.W.3d 502, 505 (Tex. App. –Texarkana 2000, no pet.).
50
   Ibarra, 11 S.W.3d at 197; Goff v. State, 931 S.W.2d 537, 551 (Tex. Crim. App. 1996), cert.
denied, 520 U.S. 1171 (1997); Brasfield, 30 S.W.3d at 505.
51
   See Tex. R. App. Pro. 33.1; Resendez v. State, 160 S.W.3d 181, 189-90 (Tex. App. – Corpus
Christi 2005, no pet.)(en banc).
52
   Young v. State, 137 S.W.3d 65, 70 (Tex. Crim. App. 2004)(en banc).
53
   Peavey v. State, 248 S.W.3d 455, 470 (Tex. App. - Austin 2008, pet. ref’d)(holding appellant
failed to preserve for appellate review claim that trial court improperly commented on the weight
of the evidence where defense counsel requested mistrial but failed to timely object or request an
instruction to disregard).
                                               26
instruction by the trial court to the jury to disregard any comments made by the

court is sufficient to cure any error arising from its statements.54

       In this case, Appellant neither timely objected to the trial court’s comments

nor requested an instruction to disregard the comments in question before moving

for a mistrial. After the jury rendered a verdict of guilty, the trial court indicated to

defense counsel that he was considering revoking Appellant’s bond and requested

argument from counsel. (R.R. Vol. XIII, p. 112-13). Defense counsel stated that

he wanted to argue against a bond revocation outside the jury’s presence. (R.R.

Vol. XIII, p. 113). The trial court then dismissed the jury and heard argument from

defense counsel.      (R.R. Vol. XIII, p. 113-14). After the trial court denied

Appellant’s request to remain on bond pending sentencing, defense counsel

requested a mistrial without first making an objection or requesting an instruction

to disregard.    (R.R. Vo. XIII, p. 114.)         The trial court’s statement was not so

prejudicial, if it was prejudicial, that it could not have been cured by an instruction.

Therefore, Appellant has waived his claim that the trial court violated Article 38.05

because he failed to make a timely objection to the trial court’s comments or

request a jury instruction to disregard.

B. Application of Law to Facts



54
  Marks v. State, 617 S.W.2d 250, 252 (Tex. Crim. App. 1981); Peavey, 248 S.W.3d at 470;
Aschbacher v. State, 61 S.W.3d 532, 539 (Tex. App. – San Antonio 2001, pet. ref’d).
                                             27
       Rather than arguing that the trial court erred in overruling his motion for a

mistrial, Appellant bases his appeal on the trial court’s alleged violation of Article

38.05 of the Texas Code of Criminal Procedure. Specifically, Appellant argues

that the trial court violated Article 38.05 by revoking Appellant’s bond in the

presence of the jury.

       Article 38.05 of the Code of Criminal Procedure provides that the trial court

shall refrain from commenting on the weight of the evidence in the jury’s presence

during any stage of the proceedings. To constitute reversible error, the comment of

the judge must be material to the case and be such that it is reasonably calculated

to benefit the State or prejudice the defendant’s rights.55 An issue is material if the

jury had the same issue before it.56

       After the jury found Appellant guilty of felony murder, the trial court

addressed defense counsel in the presence of the jury concerning Appellant’s bond.

The trial court stated:

       Will, I don’t think I told you this, but I had pretty well made up my
       mind early in the trial that if they found him guilty of that offense, I
       was going to revoke his bond and hold him overnight. And I had the
       bailiff basically check with the sheriff’s office to make sure we can do
       that here, and I think that’s what I’m going to do. Do you have
       anything you’d like to say?



55
   Sharpe v. State, 648 S.W.2d 705, 706 (Tex. Crim. App. 1983); Burge v. State, 443 S.W.2d
720, 724 (Tex. Crim. App. 1969), cert. denied, 396 U.S. 934 (1969).
56
   See Jackson v. State, 548 S.W.2d 685, 695 (Tex. Crim. App. 1977).
                                              28
         (R.R. Vol. XIII, p. 112).        The jury was subsequently asked to assess

Appellant’s punishment. Appellant argues that this comment expressed an opinion

that Appellant had not accepted responsibility and demonstrated the trial court’s

view of Appellant as a continuing threat to the community and a flight risk.

However, Appellant cites no authority to support his position that the trial court

impermissibly commented on the weight of the evidence in violation of Article

38.05.

         The circumstances of the instant case, although not as severe, is most

analogous to a defendant wearing shackles in the presence of the jury. 57                         In

Marquez v. State, the Court of Criminal Appeals determined that a trial court did

not violate Article 38.05 by requiring the defendant to wear restraints during the

punishment phase of trial.58 The defendant was convicted of capital murder, and

the jury was to determine the special issue of future dangerousness – an issue

material to the case.59 Requiring a defendant to wear handcuffs or shackles during

a criminal trial is within the discretion of the trial court.60                 In addition to

threatening to take his own life and destroying property while being escorted into

the courtroom, the defendant was convicted by the jury of capital murder and had a


57
   At no time was Appellant required to wear handcuffs or shackles in the presence of the jury.
(R.R. Vol. XIII, p. 115-16).
58
   Marquez v. State, 725 S.W.2d 217, 230 (Tex. Crim. App. 1987), overruled on other grounds
by Moody v. State, 827 S.w.2d 875, 892 (Tex. Crim. App. 1992).
59
   Id. at 227.
60
   Id.
                                               29
history of evading law enforcement.61               The Court reasoned that the record

demonstrated “a good and sufficient reason” to restrain the defendant during the

punishment phase.62

       Here, the record similarly demonstrated adequate cause for the trial court to

revoke Appellant’s bond after the jury found Appellant guilty of felony murder.

First, Appellant was convicted of an offense in which he was not eligible for

community supervision.63 Appellant’s punishment range included the possibility

of imprisonment for life and up to a $10,000 fine.64 Next, the testimony presented

during the guilt/innocence phase showed that Appellant was evading arrest or

detention when he took the life of a law enforcement officer.             Alternatively,

Appellant intentionally or knowingly committed the offense of aggravated assault

on a public servant. Considering the violent nature of the offense and Appellant’s

history of fleeing from law enforcement, the revocation of Appellant’s bond was

necessary to secure Appellant’s presence during the punishment phase of trial.

Unlike the jury in Marquez, this jury was not tasked with determining the special

issue of whether or not Appellant posed a future danger. Therefore, the issue of

Appellant’s future dangerousness was not material to the case. Finally, the trial

was moved from Bowie County to Rockwall County. This placed the trial court

61
   Id. at 228-29.
62
   Id. at 230.
63
   Tex. Code Crim. Pro. Art. 42.12, § 4(d)(8).
64
   Tex. Pen. Code sec. 12.32; Tex. Pen. Code sec. 19.02(c).
                                               30
and local law enforcement at a disadvantage in apprehending Appellant if he were

to flee. Given that the revocation of Appellant’s bond was supported by the

record, the trial court did not violate Article 38.05 by improperly commenting on

the weight of the evidence.

       Additionally, the comments by the trial court were not reasonably calculated

to benefit the State. In Graham v. State, reversal resulted because of the trial

court’s comments before voir dire of the jury, “I think that the evidence will show

that [defendant] went to [the victim’s] house looking for her daughter and the

State’s evidence will probably show that [the victim] was killed somewhere during

that time…”65 The Second Court of Appeals found that these remarks were

calculated to, and probably did, convey to the jury the court’s opinion of the case

on a pivotal issue.66 The question of whether the defendant had been to the

victim’s home on the day in question was hotly disputed, and the judge’s

comments gave credence to the State’s version of the disputed facts.67

       Here, the comment made by the trial judge did not rise to the level of those

made in Graham. Primarily, the comment was not made directly to the jury but to

counsel. The Court of Criminal Appeals in Becknell v. State reasoned that a trial

court’s statement was not made directly to the jury in overruling a claim that the


65
   Graham v. State, 624 S.W.2d 785, 787 (Tex. App. – Fort Worth 1981, no pet.).
66
   Id. at 788.
67
   Id. at 787.
                                              31
trial court violated Article 38.05.68          In addition, whether or not to revoke

Appellant’s bond was not an issue to be decided by the jury. Therefore, the trial

court’s comment was not calculated to benefit the State or prejudice Appellant.

The trial court did not error in revoking Appellant’s bond in the presence of the

jury.

C. Harmless Error

        Assuming arguendo that the trial court erred be revoking Appellant’s bond

in the jury’s presence, such error does not constitute reversible error. Appellant

correctly points out that a violation of Article 38.05 is non-constitutional error.69

Under Rule 44.2(b), non-constitutional error must be disregarded if it does not

affect the appellant’s substantial rights.70 A substantial right is affected when the

error had a “substantial and injurious effect or influence in determining the jury’s

verdict.”71 But if the error did not influence the jury or had but a slight effect upon

its deliberations, such non-constitutional error is harmless. In making a harm

analysis, reviewing courts examine the entire trial record and calculate, as much as

possible, the probable impact of the error upon the rest of the evidence.72



68
   Becknell v. State, 720 S.W.2d 526, 523 (Tex. Crim. App. 1986).
69
   Simon v. State, 203 S.W.3d 581, 593 (Tex. App. – Houston [14th Dist.] 2006, no pet.).
70
   TEX. R. APP. P. 44.2(b).
71
   Morales v. State, 32 S.W.3d 863, 867 (Tex. Crim. App. 2002); Johnson v. State, 967 S.W.2d
410, 417 (Tex. Crim. App. 1998); Matz v. State, 21 S.W.3d 911, 912 (Tex. App. – Fort Worth
2000, pet. ref’d).
72
   Coble v. State, 330 S.W.3d 253, 280 (Tex. Crim. App. 2010).
                                             32
       In arguing that the trial court committed reversible error, Appellant contends

that the evidence of his guilt was not great. However, the comment of the trial

court was made after the jury returned of verdict of guilty. Any alleged error

would have affected only the punishment phase of trial.

       Here, similar testimony was submitted to the jury. Error may be rendered

harmless when “substantially the same evidence” is admitted elsewhere without

objection either before or after the complained-of ruling.73 Appellant called Taras

Summers, a community supervision officer for Bowie County, during the

punishment phase. (R.R. Vol. XIV, p. 115). Defense counsel elicited testimony

that Appellant was arrested and then placed on supervised bond, house arrest, adn

electronic monitoring.      (R.R. Vol. XIV, p. 115-17, 123). The jury was also

informed during voir dire and the jury charge that Appellant was not eligible for

community supervision. (R.R. Vol. VIII, p. 67; Vol. XV, p. 96-97). As such, the

jury was aware that Appellant was on bond and would be taken into custody at the

time the trial court revoked Appellant’s bond.            In addition, the trial court’s

comment was not emphasized or mentioned during argument by either party.

Therefore, any impact the trial judge’s comments may have had on the jury’s

punishment deliberations were slight.



73
  Coble, 330 S.W.3d at 282 (quoting Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App.
1998); Mayes v. State, 816 S.W.2d 79, 88 (Tex. Crim. App. 1991).
                                             33
       Additionally, the trial court instructed the jury at the beginning of trial not to

consider ruling’s as comments on the evidence. Prior to voir dire, the trial court

instructed the jury:

       Even I, as the judge, am not permitted to influence your evaluation
       through words or actions during the trial. My job is to decide the law
       and to hear evidence and other objections. When I rule on objections,
       I am not indicating my personal feelings for one side or the other but
       simply applying the rules of law established by the legislature that
       govern this trial.

(R.R. Vol. VIII, p. 9). It is presumed that a jury follows instructions given by the

trial court.74   The presumption is refutable, but the appellant must rebut the

presumption by pointing to evidence that the jury failed to follow the trial court’s

instructions.75 In this case, Appellant has not offered any evidence to rebut the

presumption that the jury followed the trial court’s instructions.

       Furthermore, there is no evidence in the record that the trial court’s

comments made to counsel were heard, understood, or considered by the jury

during deliberations.       In Becknell v. State, the Court of Criminal Appeals

determined that a comment made during a bench conference but in the jury’s

presence was not reversible error where “there was no evidence in the record that

the jury heard or understood the court’s comments, nor any evidence that appellant



74
   Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Williams v. State, 937 S.W.2d
479, 490 (Tex. Crim. App. 1996).
75
   See Colburn, 966 S.W.2d at 520.
                                              34
was thereby injured.”76         The trial judge indicated his intention to revoke

Appellant’s bond in the presence of the jury, but the comments were directed to

defense counsel. Because the record does not support a conclusion that the jury

was influenced by the complained-of statements, any error is harmless.

       For these reasons, Appellants third point of error should be overruled.



                      Reply to Point of Error Number Four

       Appellant failed to preserve his due-process claim for appellate
       review. However, the trial court did not abuse its discretion in
       denying Appellant’s request for a mistrial based on the prosecutors’
       wearing of “fallen officer” wristbands.

                               Argument and Authorities

A. Preservation of Error

       “It is well established that, in order to preserve an issue for appeal, a timely

objection must be made that states the specific ground of objection, if the specific

ground was not apparent from the context.”77 Furthermore, “if a party fails to

properly object to constitutional errors at trial, these errors can be forfeited.”78

Texas courts have found “that numerous constitutional rights, including those

implicating a defendant’s due process rights, may be forfeited for purposes of


76
   Becknell, 720 S.W.2d at 532.
77
   Buchanan v. State, 207 S.W.3d 772, 775 (Tex. Crim. App. 2006); citing Tex. R. App. P.
33.1(a)(1)(A).
78
   Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012).
                                              35
appellate review unless properly preserved.”79 In Belt v. State, the Second Court of

Appeals held that a defendant failed to preserve for appellate review any violation

of his due process rights where the defendant did not raise a due process challenge

at trial.80 Furthermore, the objection raised on appeal must be the same as the

objection raised at trial.81 Where a trial objection does not comport with the issue

raised on appeal, error is not preserved for review and is waived.82

       On appeal, Appellant argues that the prosecutors’ wearing of blue and black

wristbands violated his right to due process. However, Appellant never made a

due-process claim in the trial court, and the trial judge was never given an

opportunity to rule on the issue. Appellant merely argued that the wearing of the

wristbands was “highly prejudicial and improper.” (R.R. Vol. XI, p. 21-22). This

objection was not sufficient to put the trial court on notice that Appellant was

raising a due-process claim. Because Appellant’s trial objection does not comport

with his claim of error on appeal, he failed to preserve this argument for appellate

review.

       Appellant also failed to request a limiting instruction prior to moving for a

mistrial. A party who fails to request an instruction to disregard will have forfeited

appellate review of that class of events that could have been “cured” by such an

79
   Anderson v. State, 301 S.W.3d 276, 280 (Tex. Crim. App. 2009).
80
   Belt v. State, 127 S.W.3d 277, 282 (Tex. App. – Fort Worth 2004, no pet.).
81
   Ibarra, 11 S.W.3d at 197; Brasfield, 30 S.W.3d at 505.
82
   Ibarra, 11 S.W.3d at 197; Goff, 931 S.W.2d at 551; Brasfield, 30 S.W.3d at 505.
                                              36
instruction.83    The wearing of wristbands was not so prejudicial, if it was

prejudicial, that it could not have been cured by a timely instruction from the trial

court. As such, Appellant has waived appellate review of this issue.

B. Standard of Review

       Appellant objected to the wearing of wristbands by the prosecutors during

trial and requested a mistrial. (R.R. Vol. XI, p. 24). The trial court sustained

Appellant’s objection but denied his motion for a mistrial. (R.R. Vol. XI, p. 24).

Mistrials are an “extreme remedy” and should only be granted when “an

objectionable event is so emotionally inflammatory that curative instructions are

not likely to prevent the jury being unfairly prejudiced against the defendant.”84

       A denial of a motion for a mistrial is reviewed for an abuse of discretion.85

An appellate court must review a trial court’s ruling in light of the arguments in

front of the trial court at the time of the ruling.86 A trial court may not be faulted

for arguments not presented prior to ruling on a motion for mistrial.87

       A defendant must show either actual or inherent prejudice to prevail on a

claim of reversible prejudice resulting from external juror influence. 88                  To

determine inherent prejudice, appellate courts look to whether “an unacceptable

83
   Young, 137 S.W.3d at 70.
84
   Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 2013), overruled on other grounds by
Ex Parte Lewis, 219 S.W.3d 335, 337 (Tex. Crim. App. 2007).
85
   Hollaway v. State, 446 S.W.3d 847, 855 (Tex. App. – Texarkana 2014, no pet.).
86
   Weed v. State, 129 S.W.3d 126, 129 (Tex. Crim. App. 2004); Tex. R. App. P. 33.1.
87
   Id.
88
   Holbrook v. Flynn, 475 U.S. 560, 561 (1986).
                                             37
risk is presented of impermissible factors coming into play.” 89 In order to show

actual prejudice, the jurors must express consciousness of some prejudicial effect.90

Inherent prejudice rarely occurs and “is reserved for extreme situations.”91

C. Application of Law to Facts

       In his fourth point of error, Appellant claims that the prosecutors wore blue

and black wristbands during trial in violation of the Sixth and Fourteenth

Amendments to the United States Constitution. Specifically, Appellant contends

that the wearing of these wristbands constituted “state sponsored conduct” which

was so inherently prejudicial that it deprived Appellant of a fair trial by injecting

an “unacceptable factor” influencing the jury’s verdict. Appellant cites Holbrook

v. Flynn to support his position that reversal is required unless an essential state

interest justified the wearing of wristbands. However, the United States Supreme

Court in Flynn determined that seating up to eight uniformed officers behind the

defendant at trial “was not so inherently prejudicial that [the defendant] was

thereby denied his constitutional right to a fair trial.”92 The Court reasoned the

“presence of guards in a courtroom during trial is not the sort of inherently

prejudicial practice that should be permitted only where justified by an essential


89
   Id. (citing Estelle v. Williams, 425 U.S. 501, 505 (1976)).
90
   Howard v. State, 941 S.W.2d 102, 117 (Tex. Crim. App. 1996), overruled on other grounds by
Easley v. State, 424 S.W.3d 353 (Tex. Crim. App. 2014).
91
   Id. citing Bundy v. Duggar, 850 F2d 1402, 1424 (11th Cir. 1988), cert. denied, 488 U.S.1034
(1989).
92
   Flynn, 475 U.S. at 560.
                                              38
state interest.”93 Appellant has failed to show the existence of such inherent

prejudice.

           Here, the wearing of wristbands was not so inherently prejudicial to require

a showing of an essential state interest, and it did not pose an unacceptable threat

to Appellant’s right to a fair trial. Both prosecutors wore blue and black rubber

bands printed with the victim’s name and date of death. (Record Exhibit 9). The

wristbands did not pose an unacceptable threat because this information, the

victim’s name and date of death, was elicited during Appellant’s murder trial.

Defense counsel noted that courtroom spectators were wearing similar wristbands,

but no objection was made. (R.R. Vol. XI, p. 22). In regard to the prosecutors’

wristbands, defense counsel objected not to the words but to the colors of the bands

and argued that blue and black were associated with fallen officers. (R.R. Vol. XI,

p. 23). However, it is neither inherently prejudicial nor unacceptably threatening

for the State’s attorneys to wear certain colors during trial. The wearing of blue

and black wristbands is not an impermissible factor coming into play before the

jury warranting a mistrial or reversal.

           Additionally, the record does not support a conclusion that the jury viewed

or were influenced by the wristbands. Defense counsel did not notice the bands




93
     Id.
                                            39
until the fourth day of trial. (R.R. Vol. XI, p. 22-23). Similarly, the trial judge

stated:

       I’ve watched how [the prosecutors] both pull rubber bands off their
       wrists to put around photographs … I thought they were rubber bands.
       And you can’t tell what they are. You can’t see any of the writing. I
       mean, they’ve been right here two feet in front of me numerous times
       since Sunday and Monday. I didn’t notice them.

(R.R. Vol. XI, p. 23). In Nguyen v. State, the Third Court of Appeals held that the

wearing of buttons portraying the victim’s photograph by courtroom spectators did

not result in external influence on the jury.94 The Austin court reasoned that the

record did not demonstrate a reasonable probability of influence on the jury’s

verdict because there was no record of the jury seeing the buttons. 95 Similarly,

there is nothing in the record to support an assertion that the jury viewed these

wristbands.

       However, even if the jury viewed the prosecutors’ wristbands, this supplied

no external influence on the jury. Defense counsel argues that the wristbands

conveyed a message about the matter before the jury and suggests that this external

influence affected the outcome of the trial. Prosecutors represent the State of

Texas in criminal prosecutions.96 In this case, the murder victim was a peace

officer acting within the course of his duties. The prosecutors were advocating for

94
   Nguyen v. State, 977 S.W.2d 450, 457 (Tex. App. – Austin 1998), aff’d, 1 S.W.3d 694 (Tex.
Crim. App. 1999).
95
   Id.
96
   Tex. Code Crim. Pro. Art. 2.01.
                                              40
the jury to convict Appellant for the murder of Officer William Jason Sprague, a

fallen officer. The wristbands provided no inference not already supplied by the

duty of prosecutors and the presentation of the State’s case-in-chief. Wearing of

wristbands in no way exerted an external influence on the jury that deprived

Appellant of due process.

       The wristbands were not so inherently prejudicial as to pose an

unacceptable threat to Appellant’s right to a fair trial, therefore, Appellant’s due

process rights were not violated. Furthermore, the trial court did not abuse its

discretion in denying Appellant’s motion for a mistrial because the wearing of

wristbands by the prosecutors did not warrant an extreme remedy.

      For these reasons, Appellant’s fourth point of error should be overruled.



                    Reply to Point of Error Number Five

      The trial court did not err by allowing the introduction of extraneous
      offense evidence because it was relevant to show intent, motive,
      identity and state of mind. Furthermore, any error, if it was error,
      was harmless.

                            Argument and Authorities

A. Standard of Review




                                        41
       The trial court has wide discretion in deciding whether to admit or exclude

evidence.97 When considering whether a trial court’s decision to admit or exclude

evidence is error, an appellate court must determine whether the trial court abused

that discretion.98 This inquiry depends on the facts of each case.99

       When reviewing a trial court’s decision to admit or exclude evidence, an

appellate court must afford great deference to the trial court’s balancing

determination and should reverse a trial court “rarely and only after a clear abuse

of discretion.”100 An abuse of discretion occurs only when the trial court acts

arbitrarily or unreasonably without reference to any guiding rules or principles.101

Even if the reviewing court might have reached a different result, the court must

uphold the trial court’s decision to admit or exclude evidence if it was within the

“zone of reasonable disagreement.”102 A trial court’s evidentiary ruling must be

upheld if it was correct under any theory of law applicable to the case.103

B. Application of Law to Facts




97
   Montgomery v. State, 810 S.W.2d 372, 379 (Tex. Crim. App. 1990); Wilder v. State, 111
S.W.3d 249, 255 (Tex. App. – Texarkana 2003, pet. ref’d).
98
   Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000); Robinson v. State, 35
S.W.3d 257, 263 (Tex. App. – Texarkana 2000, pet. ref’d).
99
   Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
100
    Robbins v. State, 88 S.W.3d 256, 262 (Tex. Crim. App. 2002).
101
    Linciciome v. State, 3 S.W.3d 644, 646 (Tex. App. – Amarillo 1999, no pet.); Phelps v. State,
999 S.W.2d 512, 519 (Tex. App. – Easland 1999, pet. ref’d.).
102
    Wheeler v. State, 67 S.W.3d 870, 888 (Tex. Crim. App. 2002); Weatherred, 15 S.W.3d at 542.
103
    De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim. App. 2009).
                                               42
       1. Rule 404(b)

       Appellant argues that the trial court erred in admitted evidence of

Appellant’s drug possession and distribution on the day of the murder.

Specifically, Appellant avers that certain text messages recovered from his cellular

phone were admitted in violation of Rule 404(b) of the Texas Rules of Evidence.

However, the text messages were properly admitted to prove identity, intent,

motive and Appellant’s state of mind at the time of the offense.

       Evidence of other crimes, wrongs, or acts is not admissible to prove the

character of a person in order to show action in conformity therewith under Rule

404(b) of the Texas Rules of Evidence. It may, however, be admissible for other

purposes, provided the evidence has relevance apart from character conformity. 104

This type of evidence may be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.105

       Although the existence of a motive is not essential to a conviction,

nevertheless the presence or absence of a motive for a crime is obviously a factor

that is related to the question of a defendant’s guilt or innocence. 106 Consequently,




104
    See Tex. R. Evid. 404(b).
105
    Swarb v. State, 125 S.W. 3d 672, 680 (Tex. App.-Houston [1st Dist.] 2003, pet. dism’d).
106
    Knox v. State, 934 S.W. 2d 678, 682 (Tex. Crim. App. 1996).
                                               43
proof of any existing motive for the offense is generally held admissible.107

Evidence of extraneous conduct may be offered to prove motive under Rule 404(b)

if the evidence tends to raise an inference that the defendant had a motive to

commit the offense.108 Put another way, such evidence is admissible under Rule

404(b) if “it tends to establish some evidentiary fact, such as motive…, leading

inferentially to an elemental fact [such as identity or intent].”109

       Rule 404(b) permits admission of evidence of extraneous offenses to show

motive to evade arrest or detention.110 Further, in a murder case, Texas law

authorizes the admission of evidence of “the previous relationship existing

between the accused and the deceased, together with all relevant facts and




107
    Id.
108
    Crane v. State, 786 S.W.2d 338, 349-50 (Tex. Crim. App. 1990).
109
    Powell v. State, 63 S.W. 3d 435, 448 (Tex. Crim. App. 2001)(quoting Montgomery, 810 S.W.
2d at 387-388.
110
    See Powell v. State, 189 S.W. 3d 285, 287-89 (Tex. Crim. App. 2006) (evidence defendant
was on parole admissible under Rule 404(b) for purposes of establishing defendant’s motive to
evade detention and did not violate Rule 403); Guerra v. State, No. 07-09-00283-CR, 2010 WL
2816215, at *6 (Tex. App. – Amarillo July 19, 2010, pet. ref’d) (evidence of appellant’s prior
convictions admissible to show motive to evade and identity); Britt v. State, No. 14-06-00131-
Cr, 2007 WL 1251490 at *17-18 (Tex. App. Houston [14th Dist.] April 26, 2007, pet. ref’d)
(evidence defendant on deferred adjudication community supervision admissible to show
appellant’s motive and intent to evade arrest); West v. State, Nos. 05-04-01218-CR, 05-04-
01219-CR, 2005 WL 1950822 at 5 (Tex. App. – Dallas August 16, 2005, no pet.) (evidence of
appellant’s fraudulent possession of identifying information was relevant under Rule 404(b) to
show motive to evade detention); Vital v. State, Nos. 02-02-00421-CR, 02-02-00422-CR, 2003
WL 22966375 at *4 (Tex. App. –Fort Worth December 18, 2003, no pet.) (evidence of
appellant’s prior offense for unauthorized use of motor vehicle was relevant to show that
appellant had motive for evading arrest and such relevance was a “legitimate basis for the trial
court’s ruling”).
                                              44
circumstances to show the condition of the mind of the accused at the time of the

offense.”111

       After careful consideration of the applicable law and the facts of the case,

the trial court admitted text messages obtained from Appellant’s cellular phone

revealing that Appellant was conducting drug transactions on the date of the

offense. (R.R. Vol. XII, p. 53). Specifically, Appellant was working at his job at

the liquor store when he received a text message from Matt Rollins asking about

marijuana. (R.R. Vol. XII, p. 61-62).              Appellant was also sending out text

messages to a female, who was already at the park, asking her if she was going to

smoke marijuana and telling her that he wanted to “get her high as shit.” (R.R. Vol.

XII, p. 60). Appellant told his constituents that he had the marijuana with him at

his job. (R.R. Vol. XII, p. 62). He also relayed the quality of the marijuana he had

in stock as well as the current price he charged for the product. (R.R. Vol. XII, p.

61). The testimony at trial was that Sanders was under the influence of marijuana

at the park and that his vehicle smelled of marijuana the day following the murder.

(R.R. Vol. X, p. 7-8; R.R. Vol. XI, p. 8-10, 171-172).

       When extraneous offense evidence is admitted, “the determinative issue is

whether the extraneous offense has relevance apart from character conformity.” 112


111
  Tex. Code Crim. P. art. 38.36(a).
  Ytuarte v. State, No. 04-08-00357-CR, 2009 WL 1232327 at *3 (Tex. App. – San Antonio
112

May 6, 2009, pet. ref’d)(citing Bass v. State, 270 S.W.3d 557, 563 n.8 (Tex. Crim. App. 2008).
                                              45
Here, the defense was that Appellant did not run over and kill the police officer.

(R.R. Vol. IX, p. 20). Thus, the issue of identity was also before the jury. The

State’s theory at trial was that Appellant was both in possession of and under the

influence of marijuana. Thus, the State argued, once Appellant observed the

officer attempt to detain him, he jumped the curb to either: 1) evade detention (and

certain arrest) and/or 2) run over the officer to avoid the confrontation. (R.R. Vol.

XIII, p. 19).

      Evidence that Appellant was conducting drug transactions at the park on the

night of the murder was clear proof of his motive and intent to evade detention

and/or motive and intent to assault the officer with his vehicle. Additionally, the

text messages were relevant to establish identity and rebut Appellant’s arguments

that he was not responsible for Officer Sprague’s death. Furthermore, evidence

tending to show the state of mind of the accused at the time of the offense is

admissible under Article 38.36 of the Texas Code of Criminal Procedure.

Appellant’s awareness of his illegal possession of narcotics was relevant to show

Appellant’s state of mind at the time of the offense. Appellant knew he was being

detained and knew he was in possession of illegal narcotics.         Therefore, this

evidence tends to establish and evidentiary fact – Appellant’s intent to evade arrest

or detention and/or assault a public servant.




                                          46
          Thus, the trial court could have reasonably concluded the extraneous

offense evidence had relevance apart from character conformity.

          2. Rule 403

          In the event that this Court finds the trial court did not abuse its discretion in

admitting the extraneous offense evidence, Appellant further argues that the

probative value of such evidence was outweighed by the prejudicial effect.

          In Powell v. State, the Texas Court of Criminal Appeals reversed the Waco

Court of Appeals’ decision in an evading arrest or detention case involving the

introduction of extraneous offense evidence used to establish motive because the

Waco Court failed to give proper deference to a trial court’s ruling under a Rule

403 balancing test.113 In that decision, the Powell Court reiterated the longstanding

rule that “although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues,

or misleading the jury, or by considerations of undue delay, or needless

presentation of cumulative evidence.”114 The Court went on to note “[w]e have

repeatedly explained that Rule 403’s use of the word ‘may’ reflects the draftsman’s

intent that the trial judge be given very substantial discretion in ‘balancing’

probative value on the one hand and unfair prejudice on the other, and that he



113
      Powell v. State, 189 S.W. 3d 285, 289 (Tex. Crim. App. 2006).
114
      Id at 288; Tex. R. Evid. 403.
                                                47
should not be reversed simply because an appellate court believes that it would

have decided the matter otherwise.”115

       Courts are to evaluate the evidence in light of the four factors set forth in

Montgomery v. State.116 First, the Court should evaluate whether the extraneous

offense made a fact of consequence more or less probable.117 In the instant case,

the State offered evidence at trial that Appellant had drugs on him at work, planned

to bring drugs to the park and was under the influence of marijuana at or near the

time of the offense. (R.R. Vol. XII, p. 53-62, R.R. Vol. XI, p. 171-172). The

evidence surrounding the narcotics, at a minimum, tends to raise an inference that

Appellant was in possession of narcotics before he struck and killed the officer.

Because the evidence is relevant to motive to flee and/or intent to strike the officer

with his automobile, it made a fact of consequence more or less probable.

       A second factor that Courts look at is potential to impress the jury in an

irrational way.118 The trial court severely limited the presentation of this evidence

to the jury. (R.R. Vol. XI, p. 216). Secret Service Agent Jeff Shaffer’s cell phone

examination revealed thousands of text messages and electronic communications.

(R.R. Vol. XI, p. 206, 217; Record Exhibit 10). Here, the trial court narrowed the

admission of these messages to just a few. (R.R. Vol. XII, p. 53; State’s Exhibits

115
    Id. (internal quotation marks and citations omitted).
116
    Montgomery, 810 S.W.2d at 389-390.
117
    Id.
118
    Id.
                                                 48
295-301). The trial court also excluded photographs of the defendant holding

marijuana and other implements connected with his drug dealing. (R. R. Vol. XII,

p. 80-81). Appellant himself mentioned in his statement to Detective Cashatt he

had smoked marijuana on the date of the murder. (R.R. Vol. X, p. 166). Troy

Daniels testified that he smelled marijuana coming from Appellant’s automobile

and that Appellant appeared to be under the influence of marijuana. (R.R. Vol. XI,

p. 171-172). Spencer Price, a crime scene technician, and Detective Brad Thacker

each testified that Appellant’s automobile smelled of marijuana the day after the

murder. (R.R. Vol. X, p. 7-8; R.R. Vol. 11, p. 8-10). Thus, the jury was already

aware of Appellant’s drug habits prior to the introduction of the text messages.

Therefore, the likelihood that the evidence improperly impressed the jury in an

irrational way is miniscule at best.

      The amount of time spent to develop the evidence, the third factor to be

considered, is almost entirely attributed to Appellant’s trial counsel.119 At trial,

Appellant’s counsel kept the sponsoring witness on the witness stand for hours

over a period of two days. (R.R. Vols. XI & XII). The State’s direct examination

of the witness was brief, while the cross examination and voir dire outside of the

presence of the jury was not. Appellant argues in his brief that the State was able

to somehow control the presentation of evidence such that the extraneous offense


119
      Id. at 391.
                                        49
evidence was introduced prior to the weekend recess. Even a cursory review of the

record would show that such was not the case. Defense counsel maintained that

they were calling witnesses during their case-in-chief; however, the defense rested

without calling a single witness. (R.R. Vol. XII, p. 96, 98 -100, 102, 113). It

would simply be impossible for the state to have anticipated this trial strategy.

Because the State can hardly be penalized for Appellant’s strategy at trial, the

amount of time spent developing the evidence is not an issue in the instant case.

      The fourth and final factor the courts consider when evaluating this issue is the

proponents need for the evidence of an extraneous offense.120 The evidence was

offered by the state to prove motive and intent. Motive is always relevant and

admissible to prove that a defendant committed the offense alleged.121                Also,

admission of extraneous offense evidence can aid in proving intent if the required

intent cannot be inferred from the act itself or if the accused presents evidence to

rebut the inference that the required intent existed.122           Defendant argued at trial

that what happened was the result of a tragic accident. (R.R. Vol. IX, p. 15-20).

Another defensive theory was that the driver of the automobile that struck the

officer was unknown. (R.R. Vol. IX, p. 20). A third theory was the state could not

produce any physical evidence connecting Appellant’s vehicle with the murder.


120
    Id.
121
    Crane v. State, 786 S.W. 2d 338, 349-50 (Tex. Crim. App. 1990).
122
    Johnson v. State, 932 S.W.2d 296, 302 (Tex. App. –Austin 1996, pet. ref’d).
                                               50
(R.R. Vol. IX, p. 20).        As a result of these arguments, motive and intent are

obviously at issue; however, Appellant also put the element of identity at issue by

putting forth these defensive theories.            Although the State did not argue the

evidence was to assist in establishing identity at trial, this court should sustain a

trial court’s decision regarding the admissibility of evidence if it correct under any

theory of law that is applicable to the case.123 Because the State needed the

evidence to prove motive, intent, and identity, this factor weighs in favor of

admission.

      Accordingly, the trial court did not abuse its discretion in determining that the

extraneous offense evidence was relevant and admissible.

C. Harm Analysis

         Assuming arguendo that the trial court erred by admitting extraneous offense

evidence, such admission does not constitute reversible error. Appellant correctly

points out that the introduction of extraneous offense evidence is non-

constitutional error.124      Under Rule 44.2(b), non-constitutional error must be

disregarded if it does not affect the appellant’s substantial rights.125 A substantial

right is affected when the error had a “substantial and injurious effect or influence




123
    Romero v. State, 800 S.W. 2d 539, 543-44 (Tex.Crim.App. 1990).
124
    See Martin v. State, 176 S.W.3d 887, 897 (Tex. App. – Fort Worth 2005, no pet.); Johnson v.
State, 84 S.W.3d 726, 729 (Tex. App. – Houston [1st Dist.] 2002, pet. ref’d).
125
    Tex. R. App. P. 44.2(b).
                                              51
in determining the jury’s verdict.”126 But if the improperly admitted evidence did

not influence the jury or had but a slight effect upon its deliberations, such non-

constitutional error is harmless.

       In making a harm analysis, reviewing courts examine the entire trial record

and calculate, as much as possible, the probable impact of the error upon the rest of

the evidence.127 The appellate court will not overturn a criminal conviction for

non-constitutional error if, after examining the record as a whole, the court has fair

assurance the error did not influence the jury, or had but a slight effect.128

Overwhelming evidence of guilt is a relevant factor in any non-constitutional harm

analysis.129

       Here, the record reflects ample evidence of Appellant’s guilt which is

outlined in the State’s Reply to Point of Error Number Eight. Additionally, similar

evidence was admitted at trial. Error in the admission of evidence may be rendered

harmless when “substantially the same evidence” is admitted elsewhere without

objection either before or after the complained-of ruling.130             Appellant himself

mentioned in his statement to Detective Cashatt he had smoked marijuana on the

date of the murder. (R.R. Vol. X, p. 166). Troy Daniels testified that he smelled

126
    Morales, 32 S.W.3d at 867; Johnson v. State, 72 S.W.3d 346, 348 (Tex. Crim. App. 2002).
127
    Coble, 330 S.W.3d at 280.
128
    Johnson, 72 S.W.3d at 351; Peters v. State, 31 S.W.3d 704, 722 (Tex. App. – Houston [1st
Dist.] 2000, pet. ref’d).
129
    Werner v. State, 412 S.W.3d 542, 551 (Tex. Crim. App. 2013); Motilla v. State, 78 S.W.3d
352, 357 (Tex. Crim. App. 2002).
130
    Coble, 330 S.W.3d at 282 (quoting Leday, 983 S.W.2d at 718; Mayes, 816 S.W.2d at 88.
                                              52
marijuana coming from Appellant’s automobile and that Appellant appeared to be

under the influence of marijuana. (R.R. Vol. XI, p. 171-172). Officers talked with

searching Appellant’s vehicle testified that it smelled of marijuana the day after the

murder. (R.R. Vol. X, p. 7-8; R.R. Vol. 11, p. 8-10).

          Furthermore, the trial court granted a limiting instruction regarding the

extraneous acts.        (R.R. Vol. XII, p. 58).       It is presumed that a jury follows

instructions given by the trial court.131 The presumption is refutable, but the

appellant must rebut the presumption by pointing to evidence that the jury failed to

follow the trial court’s instructions.132 In this case, Appellant has not offered any

evidence to rebut the presumption that the jury followed the trial court’s

instructions.

          In the instant case, a review of the record as a whole assures this Court that

the erroneous admission of extraneous offense evidence, if it was error, did not

influence the jury in its determination of Appellant’s guilt, or had but a slight

effect.

          For these reasons, Appellant’s fifth point of error should be overruled.



                          Reply to Point of Error Number Six



131
      Colburn, 966 S.W.2d at 520; Williams, 937 S.W.2d at 490.
132
      See Colburn, 966 S.W.2d at 520.
                                                53
        The trial court did not error in overruling Appellant’s Motion to
        Suppress Evidence obtained from Defendant’s cellular phone when
        Appellant gave valid consent for the seizure and search of his cellular
        telephone. In addition to the valid consent, officers also searched
        pursuant to a valid warrant.

                               Argument and Authorities

      A. Standard of Review

        Motions to suppress are subject to a bifurcated standard of review. 133 In

reviewing the trial court's ruling on a motion to suppress, deference is given to the

trial court's determination of the historical facts and rulings on mixed questions of

law and fact if the resolution of those questions turns upon the credibility and

demeanor of witnesses.134 Appellate courts are not at liberty to disturb the trial

court's findings of fact as long as they are supported by the record. However,

reviewing courts decide de novo whether the trial court erred in misapplying the

law to the facts.135

      B. Application of Law to Facts

        Appellant argues that the trial court erred in overruling his Motion to

Suppress evidence obtained from a forensic search of his cellular phone. In trial

and in his brief, Appellant contends that his phone was both illegally seized and




133
    Carmouche v. State, 10 S.W.3d 323, 327 (Tex. Crim. App. 2000).
134
    Guzman v. State, 955 S.W.2d 85, 87-88 (Tex. Crim. App. 1997); Morfin v. State, 34 S.W.3d
664, 666 (Tex. App.—San Antonio 2000, no pet.).
135
    Carmouche, 10 S.W.3d at 327; Guzman, 955 S.W.2d at 87-88; Morfin, 34 S.W.3d at 666.
                                             54
searched. However, Appellant consented to the search and seizure of his phone.

Additionally, Appellant’s phone was searched pursuant to a valid search warrant.

       1. Consent

       The Fourth Amendment of the United States Constitution and Article I,

Section 9 of the Texas Constitution prohibit unreasonable searches and seizures

initiated by the state.136 While the law expresses a clear preference for searches

conducted pursuant to a warrant, there are several exceptions to the general warrant

requirement.137 One such exception is voluntary consent, which has been “long

approved” by the Supreme Court “because it is no doubt reasonable for the police

to conduct a search once they have been permitted to do so.’”138

       In the instant case, following a hearing on Appellant’s Motion to Suppress,

the trial court filed its Findings of Facts and Conclusions of Law. (Sup. C.R. p. 27).

The trial court clearly stated that “Defendant voluntarily gave his cellular

telephone to Detective Giddens following his interview regarding the offense at

issue. Likewise, he consented to the original search of his phone.” (Sup. C.R. p.

34). The law is well-settled that an accused may consent to a search and thereby

waive any irregularities in a search warrant or dispense altogether with the




136
    U.S. Const. amend. IV; Tex. Const. art. I, § 9; Florida v. Jimeno, 500 U.S. 248, 250 (1991).
137
    Flippo v. West Virgina, 528 U.S.11, 13 (1999).
138
    State v. Weaver, 349 S.W.3d 521, 525-26 (Tex. Crim. App. 2011)(quoting Jimeno, 500 U.S.
at 250).
                                               55
necessity for one.139 Because the record shows that Appellant consented to the

search of his cellular phone, the trial court reasonably could have concluded that a

warrant was unnecessary.140           Even after the trial court found that Appellant

voluntarily turned over the phone and gave valid consent to search it, the trial court

went on to make findings and conclusions regarding the search warrant obtained

by the Texarkana, Texas Police Department. The trial court noted that the search

warrant was “not overreaching and neither was the search.” (Sup. C.R. p. 34).

These findings of facts and conclusions of law are supported by the record.

       At the hearing on Appellant’s motion to suppress, Detective Billy Giddens

testified that he asked Appellant if he could search his cell phone and Appellant

gave consent. (R.R. Vol. VII, p. 76). Detective Giddens stated that there was no

doubt in his mind that Appellant had given free and voluntary consent to go

through his phone. (R.R. Vol. VII, p. 76).

       Appellant argues the police illegally seized the phone and, as a result, any

subsequent search of the phone was likewise illegal, even if valid consent was

obtained. For this proposition Appellant mistakenly relies on Brick v. State.141 In

Brick, the Court of Criminal Appeals engaged in a lengthy discussion of whether

Miranda warnings are sufficient in themselves to attenuate tainted consent to

139
    See Bates v. State, 88 S.W.3d. 727, 727 (Tex. App.-Tyler 2002, pet. ref’d) (citing Joslin v.
State, 305 S.W.2d 351, 352 (Tex. Crim. App. (1957)).
140
    See Bates, 88 S.W. 3d at 727.
141
    Brick v. State, 738 S.W.2d 676 (Tex. Crim. App. 1987).
                                                56
conduct warrantless search after an illegal arrest.142 In his brief, Appellant does not

argue that his detention or subsequent arrest were illegal. To reach an analysis on

the Brick factors, this Court would have to ignore the trial court’s conclusion that

Appellant voluntarily surrendered his phone.        Assuming for the purposes of

argument the Brick factors are applicable to this case, the consent to search the

phone was valid and, any evidence resulting from that search, was untainted.

        In the instant case, Appellant gave his phone to Giddens at 10:04 on the

video tape and then gave consent for the search of it at 10:36. (R.R. VII, p. 74-75).

Because more than 30 minutes passed between turning the phone over and consent

to search, the “temporal proximity” is a non-issue.143 The next factor discusses if

the “seizure brought about police observation of the particular object which they

sought consent to search.”144      Because Appellant is not arguing that he was

illegally detained or arrested, this factor is likewise unhelpful.       There is no

evidence in the record to support the next factor which is, “whether the seizure

resulted from flagrant police misconduct.”145

        At the start of the interview with Detective Cashatt, Appellant was given the

Miranda warnings. (R.R. Vol. X, p. 117). These warnings are sufficient to put

Appellant on notice that he is not required to talk to law enforcement unless he

142
    Id. at 680.
143
    Id.
144
    Id.
145
    Id. at 681.
                                          57
chooses to do so. Although detectives asked if they could search his phone,

Appellant was certainly aware he was under no legal obligation to cooperate with

law enforcement.           Therefore, the next two factors, “whether consent was

volunteered or requested” and “whether the defendant was made fully aware of his

right to refuse consent” do not weigh in favor of a finding the phone was illegally

seized.146        The final factor cited by Appellant is “whether the police purpose

underlying the illegality was to obtain the consent.” In his argument in support of

this factor, Appellant states “[b]ased on the evidence, it is clear that Detective

Giddens illegally seized Appellant’s phone in order to gain consent to search.”

The problem with this argument is that Appellant fails to articulate the evidence on

which he is relying. A review of the record simply does not reveal any evidence to

support this contention.

            2. Search Incident to a Lawful Arrest

            The record supports a finding that Appellant’s phone was lawfully seized

incident to a lawful arrest and to prevent the destruction of evidence. In Riley v.

California, the Supreme Court of the United States wrote:

            Both [defendants] concede that officers could have seized and secured
            their cell phones to prevent destruction of evidence while seeking a
            warrant. That is a sensible concession. And once law enforcement
            officers have secured a cell phone, there is no longer any risk that the



146
      Id.
                                              58
       arrestees himself will be able to delete incriminating data from the
       phones.147

The Court went on to state that search incident to a lawful arrest is a reasonable

intrusion under the Fourth Amendment.148 As long as the arrest is lawful, a search

incident to arrest requires no additional justification.149               Here, Appellant was

lawfully detained at the Bi-State Justice center at the time law enforcement came

into possession of his cellular telephone. (R.R. Vol. VII, p. 75-76).                  While

Appellant was detained, Detective Matt Cashatt was drafting the arrest warrant for

the arrest of Appellant. (R.R. Vol. VII, p. 72-75). After the completion of that

process, Appellant was arrested and charged with Aggravated Assault on a Public

Servant. (R.R. Vol. VII, p. 88). Therefore, at the time of his arrest, shortly after

his detention began, any and all property on Appellant’s person would have been

lawfully seized. (R.R. Vol. VII, p. 88). Therefore, even if this Court finds that

Appellant did not give consent for the seizure of his cellular phone, such seizure

was incident to a lawful arrest.

       3. Search Warrant

       Appellant next argues that the search warrant obtained was a “general

warrant” and thus runs afoul of the constitution. The Fourth Amendment provides

for the right:

147
    Riley v. California, -- U.S. --, 134 S.Ct. 2473, 2486 (2014)(citations omitted).
148
    Id.at 2483.
149
    Id.
                                                 59
          to be secure in their persons, houses, papers, and effects, against
          unreasonable searches and seizures, shall not be violated, and no
          Warrants shall issue, but upon probable cause, supported by oath or
          affirmation, and particularly describing the place to be searched, and
          the persons or things to be seized.” 150

The Fourth Amendment's “particularity” requirement is primarily meant to prevent

general searches and the seizure of one thing under a warrant that describes another

thing to be seized.151        In the instant case, officers sought to search Appellant’s

cellular phone, and that was the cellular phone that was searched. Further, the trial

judge found “[t]he information he was seeking and the description of the item in

which he believed contained that information were specifically set out in his

affidavit.” (Sup. C.R. p. 34).

          In his brief, Appellant argues, without citing authority, the good faith

exception to the warrant requirement does not apply in the instant case. In Texas,

an officer may seize evidence of a crime even though the property is not

particularly described in the search warrant when the objects discovered and seized

are reasonably related to the offense in question, when the officer at the time of the

seizure has a reasonable basis for drawing a connection between the observed

objects and the crime that furnished the basis for the search warrant, and the

discovery of such property is made in the course of a good faith search conducted



150
      U.S. Const., amend. IV.
151
      See Marron v. United States, 275 U.S. 192, 196 (1927).
                                                60
within the perimeters of the search warrant.152 Because Agent Jeff Schaffer was

relying in good faith on the search warrant provided, any evidence recovered from

the search was lawfully obtained.



        Appellant gave consent for the search and seizure of his cellular phone.

However, Appellant’s phone was also seized incident to a lawful arrest and

searched pursuant to a valid search warrant. In either event, the trial court did not

err in overruling his Motion to Suppress.

      C. Harm Analysis

        The harm review for constitutional errors is controlled by the Court of

Criminal Appeals analysis in Snowden v. State.153 The reviewing court considers

(1) the nature of the error, (2) the extent emphasized by the State, (3) the probable

implications of the error, and (4) the weight the jury would likely have assigned to

it in the course of the deliberations.154         The Snowden court emphasized, “At

bottom, an analysis for whether a particular constitutional error is harmless should

take into account any and every circumstance apparent in the record that logically

informs an appellate determination ‘whether beyond a reasonable doubt [that




152
    Bower v. State, 769 S.W.2d 887, 906 (Tex. Crim. App. 1989).
153
    Snowden v. State, 353 S.W.3d 815 (Tex. Crim. App. 2011).
154
    Id.
                                             61
particular] error did not contribute to the conviction or punishment.’” 155 Here, the

nature of the alleged error is that evidence of Appellant’s phone and testimony

based on the evidence were admitted in violation of the Fourth Amendment.

          The trial court limited the State’s admission of testimony and evidence

regarding the cell phone and drug transactions. The state’s direct examination of

Agent Jeff Shaffer was brief and included a fraction of the text messages and

information extracted from Appellant’s phone. (R.R. Vol. XI, p. 206, 217). Troy

Daniels testified that Appellant smelled of marijuana and appeared to be under the

influence of marijuana at the park. (R.R. Vol. XI, p. 171-172). Spencer Price and

Detective Brad Thacker each testified that Appellant’s automobile smelled of

marijuana the day after the murder. (R.R. Vol. X, p. 7-10). Appellant confessed to

Detective Cashatt that he smoked marijuana on the day of the murder. (R.R. Vol.

X, p. 166). Thus, the jury heard evidence of Appellant’s drug habits from multiple

sources. It was therefore unlikely that the jury would place a tremendous amount

of weight on the complained-of evidence.

          It is possible the jury considered the phone evidence, but it is unreasonable

to think it were given much weight, if any, over the other evidence and testimony

given by the witnesses, which proved Appellant was guilty of felony murder.

Specifically, Kechelle Dansby observed Appellant, a person also known to her as


155
      Id. (quoting Tex. R. App. Proc. 44.2(a)).
                                                  62
“Butta,” driving the silver sport utility vehicle (SUV) at the park. (R.R. Vol. XI, p.

103). Dansby observed Officer Sprague exit his patrol vehicle and stand under the

brightest part of the street light (R.R. Vol. XI, p. 105-106). Dansby saw the silver

SUV backed in to the parking space and then take off toward the park exit. (R.R.

Vol. XI, p. 105). When the silver SUV approached the curb, the officer was

waiving his hands in an attempt to the attention of the silver SUV. (R.R. Vol. XI,

p. 106).   The top of the silver SUV was jumping and bouncing over the curb.

(R.R. Vol. XI, p. 105). Dansby witnessed the silver SUV run over Officer Sprague

and the officer’s body go underneath the silver SUV. (R.R. Vol. XI, p. 105). After

the silver SUV struck the officer, the vehicle paused. (R.R. Vol. XI,, p. 105-106).

Dansby testified that she believed Appellant was going to get out of the vehicle,

but he drove off instead. (R.R. Vol. XI, p. 105-106).

       Earnest Terrell Young saw Appellant, whom he knew through high school,

at the park, standing next to the silver SUV. (R.R. Vol. XI, p. 131-132). Young

was a passenger in a car and was trying to leave the park himself when he observed

the silver SUV jump the curb trying to exit the parking lot. (R.R. Vol. XI, p. 133-

134). When the vehicle jumped the curb, it appeared to accelerate and then Young

saw a flashlight go up in the air. (R.R. Vol. XI, p. 134).

      Troy Daniels saw Appellant at the park backed into a parking spot in the

silver SUV. (R.R. Vol. XI, p. 171-172). The silver SUV pulled out of the parking


                                          63
spot, the officer got out of the car and then Daniels saw the flashlight and the

officer on the ground. (R.R. Vol. XI, p. 174). The car hesitated and then pulled

off. (R.R. Vol. XI, p. 174). When the silver SUV pulled out of the parking lot, the

officer had a flashlight in his hand and was waiving it around. (R.R. Vol. XI, p.

174). Daniels also saw the silver SUV hesitate before jumping the curb. (R.R. Vol.

XI, p. 175). When Daniels called 911, he reported the automobile fled as Officer

Sprague attempted to detain the automobile. (R.R. Vol. XI, p. 175-176). Daniels

testified the silver SUV was getting pulled over by the officer and everyone else

was getting away. (R.R. Vol. XI, p. 176-76).

      Taking into account any and every circumstance apparent in the record, this

court can have assurance that any error in admission of this evidence did not

contribute to the conviction.

   For the above-mentioned reasons, Appellant’s sixth point of error should be

overruled.



                    Reply to Point of Error Number Seven

      Appellant failed to preserve error for appellate review. However, the
      State’s attorneys did not engage in prosecutorial misconduct by
      rebutting the defense’s claim that the witness had a motive or bias to
      testify. Furthermore, any error, if it was error, is not reversible error.

                            Argument and Authorities

A. Preservation of Error

                                         64
       Appellant has failed to preserve for appellate review any claim that the

prosecutors engaged in prosecutorial misconduct. Generally, to preserve error in

cases of alleged prosecutorial misconduct, the defendant must (1) make a timely

and specific objection; (2) request an instruction that the jury disregard the matter

improperly placed before the jury; and (3) move for a mistrial. 156 Appellant does

not argue that error was preserved in this case, but instead relies on the

preservation exception in Rogers v. State, a case in which the First Court of

Appeals concluded that a prosecutor’s unobjected-to but pervasive misconduct

warranted reversal.157      In Rogers, the court reasoned:

       Where there is serious and continuing prosecutorial misconduct that
       undermines the reliability of the factfinding process…resulting in
       deprivation of fundamental fairness and due process of law, the
       defendant is entitled to a new trial even though few objections have
       been perfected.158

       However, this exception applies only in “extreme cases of serious and

continuing prosecutorial misconduct.”159 A reviewing court must determine

whether the record shows ongoing prosecutorial misconduct of such a magnitude




156
    Penry v. State, 903 S.W.2d 715, 764 (Tex. Crim. App. 1995); Tex. R. App. Pro. 33.1.
157
    Rogers v. State, 725 S.W.2d 350, 358-61 (Tex. App. – Houston [1st Dist.] 1987, no pet.).
158
    Id at 359-60 (see Berger v. United States, 295 U.S. 78, 84, 88 (1935); Kerns v. State, 550
S.W.2d 91 (Tex. Crim. App. 1977)).
159
    Wilson v. State, 819 S.W.2d 662, 664 (Tex. App. – Corpus Christi 1991, pet. ref’d).
                                                65
that it deprived Appellant of fundamental fairness and due process of law. 160 The

alleged prosecutorial misconduct in this case does not rise to such as level.

       Unlike the case at hand, Rogers involved flagrant and repeated misconduct

by the prosecutor who repeatedly made side-bar remarks and suggested

inflammatory facts without any support in evidence while cross-examining the

defendant and his character witnesses.161 The Rogers court concluded that the

prosecutor acted in bad faith and that her behavior “could serve no purpose other

than to inflame and prejudice the minds of the jurors.”162

       Appellant raises an assertion of pervasive prosecutorial misconduct by

alleging that the prosecutors engaged in “action that was clearly done to inflame

prejudice against Appellant and simultaneously bolster its witness who had

effectively been impeached.” However, the record does not support a finding that

the prosecutors acted in bad faith.            The State’s attorney elicited testimony

regarding the threats after the witness had been attacked on cross-examination with

inadmissible impeachment evidence. (R.R. Vol. XI, p. 144). Appellant’s strategy

at trail was obviously to create a false impression and have the jury believe that the

witness had a bias or interest because he believed he was going to receive a benefit

from the state in exchange for his testimony. When, in fact, the exact opposite was

160
    Bautista v. State, 363 S.W.3d 259, 263 (Tex. App. – San Antonio 2012, no pet.); See Jiminez
v. State, 298 S.W.3d 203, 214 (Tex. App. – San Antonio 2009, pet. ref’d).
161
    Rogers, 725 S.W.2d at 358-61.
162
    Id. at 360-61.
                                              66
true. (R.R. Vol. XI, p. 127-128). Texas Rule of Evidence 613 states “[a] party

shall be permitted to present evidence rebutting any evidence impeaching one of

said party’s witnesses on grounds of bias or interest.”                     Thus, the evidence

concerning the fear on the part of the witness was admissible testimony.

Therefore, it cannot be said that the prosecutors acted in bad faith or intended to

inflame or prejudice the minds of the jury. Thus, Rogers is distinguishable, and

Appellant was required to properly preserve his prosecutorial misconduct

complaint, which he did not.

          Appellant did not make a timely and specific objection that the State was

engaging in prosecutorial misconduct. An objection at trial must comport with the

complaint on appeal.163 An appellate complaint about prosecutorial misconduct

must be supported by an objection in the trial court that also specified prosecutorial

misconduct.164 At trial, defense objected to the line of questioning as improper and

inflammatory. (R.R. Vol. XI, p. 159, 161). Without requesting an instruction to

disregard, Appellant made a motion for mistrial which was denied by the trial

court. (R.R. Vol. XI, p. 158-59, 163). However, Appellant’s trial counsel never

objected on the basis of prosecutorial misconduct and never requested an

instruction to disregard the matter placed before the jury. Given that Appellant



163
      Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002).
164
      Shelling v. State, 52 S.W.3d 213, 222-24 (Tex. App. – Houston [1st Dist.] 2001, pet. ref’d).
                                                  67
failed to properly preserve his claim of prosecutorial misconduct for appellate

review, it is waived.

C. Standard of Review

       Allegations of prosecutorial misconduct are reviewed on a case-by-case

basis.165 In reviewing a claim of prosecutorial misconduct, reviewing courts must

determine whether the prosecutor’s conduct requires reversal on the basis of the

probable effect on the minds of the jurors.166 To warrant reversal, the question or

comment must be harmful to the defendant and “of such a character so as to

suggest the impermissibility of withdrawing the impression produced.167

C. Application of Law to Facts

       On direct-examination, Ernest Terrell Young testified that he was on

deferred probation, had a pending motion to revoke, and had a warrant for his

arrest. (R.R. Vol. XI, p. 127-128). Despite the fact that the evidence was before

the jury, the defense attorney covered and then recovered this topic with the

witness. (R.R. Vol. XI, p. 142-151). Mr. Young was also questioned about the

specifics of offenses for which he had not been convicted. (R.R. Vol. XI, p. 144).

Because such questioning is expressly prohibited by Texas Rule of Evidence 608,


165
    Stahl v. State, 749 S.W.2d 826, 830 (Tex. Crim. App. 1998); Hodge v. State, 488 S.W.2d 779,
781-82 (Tex. Crim. App. 1973).
166
    Id.
167
    Hernandez v. State, 219 S.W.3d 6, 14 (Tex. App. – San Antonio 2006), aff’d, 273 S.W.2d 685
(Tex. Crim. App. 2008) (quoting Huffman v. State, 746 S.W.2d 212, 218 (Tex. Crim. App. 1988)
(en banc)).
                                              68
it can only be assumed that this testimony was offered to expose bias or interest

pursuant to Texas Rule of Evidence 613(b).168 Defense counsel also questioned

Young on the horrors of prison and implied that the witness would do anything to

avoid imprisonment. (R.R. Vol. XI, p. 149-151). Thus, pursuant to Rule 613(b),

the State’s evidence of the witness’s fear of testifying was relevant, permissible

and necessary to rebut the defensive theory that Earnest Terrell Young had a bias

or motive to testify favorably for the State.

       Appellant relies on Anderson v. State to support his argument of

prosecutorial misconduct based on a question asked on redirect-examination.169

The Anderson Court determined whether double jeopardy bared a second trial due

to prosecutorial overreaching in intentionally causing a mistrial in the first trial –

not whether the question itself was improper.170 Although the question asked by

prosecutors in Anderson supported a motion for mistrial in that case, the

complained-of question here is dissimilar.171 Prosecutors did not ask the witness

about threats he had received on direct-examination. Only after defense counsel

attempted to impeach the witness by revealing alleged bias and a motive to testify

for the State on cross-examination was the question asked by prosecutors on

redirect-examination.      Additionally, there is no allegation by Appellant and the

168
    See Dixon v. State, 2 S.W.3d 263, 271 (Tex. Crim. App. 1998).
169
    Anderson v. State, 635 S.W.2d 722 (Tex. Crim. App. 1982).
170
    Id. at 726.
171
    Id.
                                              69
record does not support a conclusion that the prosecutors in this case engaged in

“prosecutorial overreaching” in an attempt to force a mistrial. Therefore, Anderson

is not applicable, and the prosecutors’ actions were not the result of prosecutorial

misconduct.

      Appellant also argues that the State could not connect the threat to Appellant

and asked the complained-of question in an attempt to inflame prejudice against

Appellant. However, Appellant concedes in his brief that the prosecutors informed

the trial court and defense counsel in a pretrial hearing that witnesses for the State

had been threatened and assaulted. (R.R. Vol. VII, p. 111). The prosecutors made

clear that no information suggested that the threats or assaults were committed by

Appellant or at the request of Appellant. (R.R. Vol. VII, p. 113).          Once the

objection to the complained-of question was lodged by defense counsel, the State’s

attorney again explained that the threats had no connection to Appellant and the

questioning of Young would reflect this fact. (R.R. Vol. VII, p. 160-61). Rather

than inflaming the jury, the State’s purpose in asking the about threats the witness

had received was to rebut evidence of bias or motive as permitted by Rule 613(b).

As such, the State did not engage in prosecutorial misconduct.

      Accordingly, the State did not elicit the complained-of testimony in an effort

to inflame or prejudice the jury or to deny Appellant a fair and impartial trial.

Appellant’s contention that the prosecutors engaged in misconduct is meritless.


                                         70
Since there is a basis in the law and evidence for the argument, the record does not

support a finding of prosecutorial misconduct.

C. Harm Analysis

       Appellant does not argue that the prosecutors’ alleged misconduct resulted

in constitutional error. Non-constitutional error must be disregarded if it does not

affect the appellant’s substantial rights.172 A substantial right is affected when the

error had a “substantial and injurious effect or influence in determining the jury’s

verdict.”173 But if the improperly admitted evidence did not influence the jury or

had but a slight effect upon its deliberations, such non-constitutional error is

harmless.174

       In making a harm analysis, reviewing courts examine the entire trial record

and calculate, as much as possible, the probable impact of the error upon the rest of

the evidence.175 The appellate court will not overturn a criminal conviction for

non-constitutional error if, after examining the record as a whole, the court has fair

assurance the error did not influence the jury, or had but a slight effect.176 If

overwhelming evidence dissipates the error’s effect on the jury’s function in




172
    TEX. R. APP. P. 44.2(b).
173
    Morales, 32 S.W.3d at 867.
174
    Coble, 330 S.W.3d at 280.
175
    Id.
176
    Peters, 31 S.W.3d 704 at 722.
                                         71
determining the facts so that it did not contribute to the verdict, then the error is

harmless.177

       Appellant argues that the alleged prosecutorial misconduct “inflamed

prejudice against Appellant” and “tainted the proceedings.” In the instant case, a

review of the record as a whole assures this Court that the State’s discussion of the

witness being threatened and his fear of testifying, if it was error, did not influence

the jury in its determination of Appellant’s guilt, or had but a slight effect. When

performing a harm analysis, an appellate court may consider voir dire, each party’s

theory of the case, arguments to the jury, and relevant jury instructions.178

       In the instant case, the State did not put forth testimony that Appellant, or

anyone acting on his behalf, was a party to threatening the witnesses. (R.R. Vol.

XI, p. 157). In fact, the State was trying to rebut the defensive theory that the

witness had a motive or bias to testify in favor of the State. (R.R. Vol. XI, p. 157-

160). Appellant argues the State “attempted to elicit testimony concerning alleged

threats to one of its pivotal witnesses knowing full well they could establish no

connection to Appellant concerning the purported threats. At trial, the State’s

attorney was interrupted by Appellant’s objection, prior to asking the witness if

Appellant had anything to do with the threats or fear. (R.R. Vol. XI, p. 157-160).


177
    Cuba v. State, 905 S.W.2d 729, 734 (Tex. App. – Texarkana 1995, no pet.) (citing Harris v.
State, 790 S.W.2d 568, 587 (Tex. Crim. App. 1989)).
178
    Morales, 32 S.W.3d at 867.
                                               72
During a conference outside of the presence of the jury, the prosecutor offered to

clarify the question in front of the jury, but defense counsel declined the offer.

(R.R. Vol. XI, p. 161).

      Additionally, this question was not emphasized by the State either during

further questioning or closing argument.

      Furthermore, as fully discussed in Reply to Point of Error Number Eight,

there was ample evidence of Appellant’s guilt. While the testimony of Earnest

Terrell Young was relevant and somewhat helpful, the State could have met its

burden of proof beyond a reasonable doubt with the testimony of Kechelle Dansby

and Troy Daniels. Both Dansby and Daniels testified that Appellant was operating

a silver SUV on the night of Officer Sprague’s murder. (R.R. Vol. XI, p. 103, 171-

72). Dansby observed Officer Sprague exit his patrol vehicle and stand under the

brightest part of the street light (R.R. Vol. XI, p. 105-106). Dansby saw the silver

SUV backed in to a parking space before taking off toward the park exit. (R.R.

Vol. XI, p. 105). When Appellant approached the curb, Officer Sprague was

waiving his hands in an attempt to get Appellant’s attention. (R.R. Vol. XI, p. 106).

Appellant’s vehicle jumped the curb and ran over Officer Sprague. (R.R. Vol. XI,

p. 105). Dansby witnessed Officer Sprague’s body go underneath the silver SUV.

(R.R. Vol. XI, p. 105).




                                           73
      Daniels observed Appellant drive out of his parking spot as Officer Spraque

exited his vehicle with a flashlight. (R.R. Vol. XI, p. 174). When the silver SUV

pulled out of the parking lot, Officer Sprague was waving his flashlight. (R.R.

Vol. XI, p. 174). Daniels also saw the silver SUV hesitate and then jump the curb.

(R.R. Vol. XI, p. 175). When Daniels called 911, he reported the automobile was

trying to leave the scene as the officer was attempting to detain him. (R.R. Vol. XI,

p. 175-76). Appellant confirmed he was the only person to operate the silver SUV

on the night of the murder. (R.R. Vol. X, p. 168).

      After examining the record as a whole, this Court has fair assurance that the

alleged prosecutorial misconduct, if it was error, did not influence the jury, or had

but a slight effect. Given that Appellant’s substantial rights were not affected, any

error is harmless.

      For these reasons, Appellant’s seventh point of error should be overruled.



                     Reply to Point of Error Number Eight

      The State produced legally sufficient evidence to connect Appellant to
      the murder of Officer William Jason Sprague.


                            Argument and Authorities

A. Standard of Review




                                         74
       When conducting a legal sufficiency review, a reviewing court must ask

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

crime beyond a reasonable doubt – not whether it believes the evidence at trial

established guilt beyond a reasonable doubt.179             In doing so, appellate courts

assess all evidence in the light most favorable to the prosecution.180 It is presumed

that the trier of fact resolved any conflicting inferences in favor of the prosecution

and reviewing courts must defer to that resolution.181 The jury is the sole judge of

the credibility of witnesses and may accept or reject any part of their testimony.182

Therefore, the reconciliation of any conflicts in the evidence is within the exclusive

province of the trier of fact.183 Consequently, a review of the legal sufficiency of

the evidence accords great deference to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences therefrom.184 The reviewing court must presume that the trier of fact

resolved any conflicting inferences in favor of the prosecution and must defer to

that resolution.185


179
    Brooks v. State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Laster v. State, 275 S.W.3d
512, 517 (Tex. Crim. App. 2009).
180
    Laster, 275 S.W.3d at 517 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979).
181
    Jackson, 443 U.S. at 326.
182
    Jonson v. State, 517 S.W.2d 170, 173 (Tex. Crim. App. 1978).
183
    Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Chafin v. State, 95 S.W.3d
549, 557 (Tex. App. – Austin 2002, no pet.); see TEX. CODE CRIM. PROC. art. 38.04.
184
    Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993); Matson v. State, 819 S.W.2d 839,
843-846 (Tex. Crim. App. 1991)
185
    Turro, 867 S.W. at 47; Matson, 819 S.W.2d at 846.
                                              75
       A verdict will not be overturned due to insufficiency unless the supporting

evidence is irrational or unable to support proof beyond a reasonable doubt.186

       Legal sufficiency of the evidence is measured by the elements of the offense

as defined by a hypothetically correct jury charge for the case.187               The

hypothetically correct jury charge “sets out the law, is authorized by the

indictment, does not unnecessarily increase the State’s burden of proof or

unnecessarily restrict the State’s theories of liability, and adequately describes the

particular offense for which the defendant was tried.”188

B. The Evidence

       Although Appellant does not contest that Officer Sprague was struck by a

motor vehicle and died as a result of his injuries, Appellant contends that the

evidence is insufficient to connect him with the death of Officer William Jason

Sprague. However, the State produced legally sufficient evidence to prove that

Appellant is responsible for Officer Sprague’s death and is guilty of felony murder.

       1. Eyewitness Testimony

       The eyewitness testimony sufficiently links Appellant and his vehicle to the

murder of Officer Sprague.




186
    Matson, 819 S.W. 2d at 846.
187
    Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
188
    Id.
                                              76
       John McGee testified that he knows Appellant as “Butta.” (R.R. Vol. X, p.

74).   McGee saw Appellant at the park that night sitting in a silver SUV. (R.R.

Vol. X, p. 82-83). The silver SUV was backed in a parking spot toward the end of

the parking lot near the grass median. (R.R. Vol. X, p. 83). A second silver SUV

had been at the park earlier but had already gone by the time Sprague responded to

the park. (R.R. Vol. X, p. 84). When Officer Sprague pulled up, everyone started

yelling that a cop was coming, “got scared, hopped in their cars and tried to leave

fast.” (R.R. Vol. X, p. 88-89).

       McGee was parked in the same parking lot as Appellant when Sprague

arrived on the scene. (R.R. Vol. X, p. 89). McGee was attempting to leave out of

the south exit of the parking lot when he turned and looked toward the north side

of the lot were Sprague’s vehicle was parked. (R.R. Vol. 10, p. 90).       Sprague’s

vehicle was parked near the northern exit to the parking lot. (R.R. Vol. 10, p. 90).

When McGee was looking to the left waiting to turn out, he saw Appellant’s

vehicle driving fast through the parking lot attempting to leave. (R.R. Vol. 10, p.

91). McGee saw Appellant’s SUV jump the northern curb and then the officer was

on the ground. (R.R. Vol. X, p. 91-92). After Appellant jumped the curb, people

starting filing out of their cars and shouting “he hit the cop.” (R.R. Vol. X, p. 92).

Although McGee did not actually see the impact, he knew the silver SUV struck

the officer because there were no other vehicles exiting at that end of the parking


                                         77
lot at that time. (R.R. Vol. X, p. 95). Stated another way, there were no other

vehicles that could have struck the officer. (R.R. Vol. X, p. 99).

      Kechelle Dansby observed Appellant driving the silver SUV at the park.

(R.R. Vol. XI, p. 103). Dansby observed Officer Sprague exit his patrol vehicle

and stand under the brightest part of the street light (R.R. Vol. XI, p. 105-106).

Dansby saw the silver SUV backed in to a parking space before driving toward the

park exit. (R.R. Vol. XI, p. 105). Dansby then observed the top of the silver SUV

was jumping and bouncing over the curb. (R.R. Vol. XI, p. 105). When the silver

SUV approached the curb, Officer Sprague was waiving his hands. (R.R. Vol. XI,

p. 106). However, the silver SUV did not stop. (R.R. Vol. XI, p. 106). Dansby

witnessed the silver SUV run over Officer Sprague and saw Sprague’s body go

underneath the silver SUV. (R.R. Vol. XI, p. 105).

      Earnest Terrell Young also saw Appellant at the park standing next to the

silver SUV. (R.R. Vol. XI, p. 131-132). Young was a passenger in a car and was

trying to leave the park himself when he observed the same silver SUV jump the

curb trying to exit the parking lot. (R.R. Vol. XI, p. 133-134). Appellant’s vehicle

appeared to accelerate as he jumped the curb. (R.R. Vol. XI, p. 134).

      Troy Daniels also observed Appeallnt at the park backed into a parking spot

in the silver SUV. (R.R. Vol. XI, p. 171-172). Appellant was sitting in the driver’s

seat with the window down. (R.R. Vol. 11, p. 72).       When Sprague arrived at the


                                          78
park, Appelalnt’s SUV pulled out of the parking spot. (R.R. Vol. XI, p. 174). As

Appellant pulled out of the parking lot, Sprague was waiving his flashlight towards

the traffic. (R.R. Vol. XI, p. 174). Daniels testified that Appellant’s SUV jumped

the curb and he then saw Sprague on the ground. (R.R. Vol. 11, p. 174-75). The

SUV hesitated before fleeing the scene. (R.R. Vol. XI, p. 174).       When Daniels

called 911, he reported that the officer was trying to detain the silver SUV. (R.R.

Vol. 11, p. 175-176). He reported that this same SUV ran over the officer before

fleeing the scene. (R.R. Vol. 11, p. 175-176). Daniels testified that he believed the

silver SUV was being detained by the officer while the other vehicles were getting

away. (R.R. Vol. XI, p. 176).

      2. Appellant’s Statement

      Appellant confessed to being the operator and sole occupant of the vehicle

that struck Officer Sprague.

      Detective Matt Cashatt, the lead investigator, interviewed Appellant. (R.R.

Vol. X, p. 127). Cashatt, who has had training in certain investigative techniques,

testified Appellant showed no signs of being uncomfortable when answering basic

questions or talking about background information. (R.R. Vol. X, p. 155-156).

However, Appellant began speaking in incomplete sentences and was searching for

answers when discussing the murder. (R.R. Vol. X, p.156). Initially, Appellant

said he “rolled through” the park but did not stop. (R.R. Vol. X, p.157). Appellant


                                         79
claimed he left the park before the officer arrived. (R.R. Vol. X, p.157). By his

own admission, Appellant was the sole occupant and operator of the silver SUV on

the night the crime occurred. (R.R. Vol. X, p. 164).        Appellant’s story later

changed, and he said that he stopped to talk to his cousin. (R.R. Vol. X, p.165-

166). Appellant gave multiple names for this alleged cousin. (R.R. Vol. X, p. 166).

Sanders said he left the park and went to Keante’s house, however; after an

exhaustive investigation, no such individual was ever located. (R.R. Vol. X, p.

168).

        3. Medical and Physical Evidence

        In addition to Appellant’s statement and the eyewitness testimony, the State

produced medical and physical evidence that corroborated the charge of felony

murder.

        The medical evidence establishes that Officer Sprague died as a result of

injuries sustained from being struck by a vehicle. Dr. Marc Smith, a Texarkana

neurosurgeon, treated Sprague after he was struck by the vehicle. (R.R. Vol. X, p.

218-220). Dr. Smith determined that Officer Sprague suffered catastrophic injury,

including a significant skull base fracture, due to a fall from standing after he was

struck by a vehicle (R.R. Vol. X, p. 229-231). Sprague died as a result of being

struck by a vehicle. (R.R. Vol. X, p. 239).




                                         80
      The medical examiner testified that striking someone with a vehicle is an act

clearly dangerous to human life. (R.R. Vol., X, p. 247-248). Sprague had multiple

skull fractures, and all twelve ribs on his left side were broken. (R.R. Vol., X, p.

257). There were bruises on the officer’s lungs and blood in his chest cavity. (R.R.

Vol., X, p. 257-258). The abrasions on the officer’s body were consistent with

being drug on asphalt or a rocky surface. (R.R. Vol., X, p. 260). The left thigh

bone was fractured. (R.R. Vol., X, p. 260-261). Because the injuries were focused

on the left side of his body and his head, this would indicate that he was struck

primarily on the left side of his body. (R.R. Vol., X, p. 262). The cause of death

was blunt force injuries. (R.R. Vol., X, p. 263).

      The physical evidence also connects Appellant’s vehicle to Officer

Sprague’s death along with corroborating the eyewitness testimony and the

medical evidence. A description of the suspect vehicle, a sliver SUV, was released

after Officers Micah Brower and Bo Carter reviewed the in-car video from

Sprague’s patrol unit. (R.R. Vol. IX, p. 166-167). On the video, Sprague can be

heard yelling “hey, stop,” and then static can be heard from Sprague’s body

microphone. (R.R. Vol. IX, p. 168). Only a few cars are visible on Sprague’s in-

car video. (R.R. Vol. IX, p. 197). On the video, Carter observed a silver SUV exit

a nearby parking space and drive toward the exit by which Sprague’s vehicle was




                                          81
parked. (R.R. Vol. IX, p.197-198). Carter testified he was 100% sure that the

silver SUV was the suspect vehicle. (R.R. Vol. IX, p. 199).

      Crime Scene Investigator Spencer Price noted a reddish brown mark and

tears on the officer’s duty shirt. (R.R. Vol. IX, p. 278). He believed the dirt transfer

on the left side of the officer’s uniform was caused by a vehicle. (R.R. Vol. IX, p.

278). There were small marks on the back of the officer’s shirt that appeared to be

caused from the uniform catching on a rocky surface or asphalt. (R.R. Vol. IX, p.

278-279).    Sprague’s duty gear, including his badge, radio, radio clip, handcuffs

and his handgun were also damaged in a manner consistent with being dragged on

a rough surface. (R.R. Vol. IX, p. 284-285).

      Having learned that the suspect vehicle jumped the curb, Price responded to

the park and observed the faint outline of tire tracks. (R.R. Vol. X, p. 13-20). The

approximate width of the tracks was consistent with the wheel base of the GMC

Acadia. (R.R. Vol. X, p. 13-14). There were also white marks on the curb that

were consistent with being struck by the metal frame of a vehicle (R.R. Vol. X, p.

14-15). Price testified that he was able to place Sprague’s patrol unit in the same

position as on the night of the murder after observing Sprague’s in-car. (R.R. Vol.

X, p. 52-53). Because the rear camera was fixed, officers were able to mark the

approximate placement of Sprague’s feet at the time he was struck. (R.R. Vol. X,

p. 52).


                                          82
      Appellant’s silver, Acadia SUV was located and identified as the suspect

vehicle. (R.R. Vol. X, p. 6-7). Crime Scene Investigator Marc Sillivan noted dirt

removal on the undercarriage and the fender well on the passenger side of Sanders’

vehicle. (R.R. Vol. XI, p. 25-27). There was also damage on the metal pieces of the

inside fender well. (R.R. Vol. XI, p. 28). The bumper of the vehicle was pushed

out, and the bumper retention clips were broken. (R.R. Vol. XI, p. 28). Officers

observed wipe marks on the front of the car as if someone attempted to wipe down

only the front part of the grill. (R.R. Vol. XI, p. 30). Crime Scene Investigator

Shawna Yontz testified that there was a disturbance of dust on the front hood and

partial fingerprint impressions in the dust. (R.R. Vol. XI, p. 50). There was dust

all over the vehicle except for this area of disturbance. (R.R. Vol. XI, p. 50). It

appeared that something large had removed the dust from the front part of the

vehicle and fingerprint impressions appeared in long lines on the front of the

passenger side of the vehicle as if something had dragged across the surface. (R.R.

Vol. XI, p. 50-51).

      Although Appellant argued at trial that his vehicle displayed only minimal

damage, Crime Scene Investigator Scott Lillis testified that he has worked cases in

the past where an individual was struck by an automobile without the vehicle

sustaining any damage. (R.R. Vol. XI, p. 96-97).     In this case, he believed the




                                        83
damage on Sanders’ SUV is consistent with striking a human being. (R.R. Vol.

XI, p. 97).

          There was no other information that any other vehicle struck the officer.

(R.R. Vol. X, p. 170). The damage observed on the silver SUV was consistent

with the injuries that the officer suffered. (R.R. Vol. X, p. 170).

          6. Circumstantial Evidence

          Circumstantial evidence is as probative as direct evidence when establishing

guilt, and appellate review of circumstantial evidence is the same as used for direct

evidence.189 Therefore, a reviewing court draws no distinction between the two.190

Here, the circumstantial evidence proves Appellant’s identity along with his intent

and motive to commit Aggravated Assault on a Public Servant and/or Evading

Arrest or Detention.

          On the night of the murder, Daniels testified that he smelled the odor of

marijuana on Appellant and that he under the influence. (R.R. Vol. XI, p. 172-

173). Appellant admitted to smoking marijuana on the day Officer Sprague was

murdered.         (R.R. Vol. X, p. 166). Price along with Detective Brad Thacker

searched the interior of Appellant’s vehicle and noticed the faint smell of

marijuana. (R.R. Vol. X, p. 7-8; Vol. XI, p. 8-10).



189
      Kuciemba, 310 S.w.3d at 462; Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).
190
      Id.
                                                84
      Additionally, Secret Service Agent Jeff Shaffer extracted text messages and

other information from Appellant’s cell phone indicating that Appellant was

discussing marijuana on the day of the murder. (R.R. Vol. XII, p. 62). Appellant

was planning to meet an acquaintance at the park and stated that he wanted to get

her high. (R.R. Vol. XII, p. 61). In response to a request for marijuana, Appellant

indicated that he was in possession of marijuana while at work. (R.R. Vol. XII, p.

61-62). Appellant was arranging drug transactions and providing information for

certain amounts of marijuana. (R.R. Vol. XII, p. 61).

C. Conclusion

      A review of the evidence in the light most favorable to the verdict reveals

that a jury could have reasonably found that during the course of committing the

felony offenses of Aggravated Assault on a Public Servant and/or Evading Arrest

or Detention, Appellant caused the death of Officer William Jason Sprague.

Therefore, legally sufficient evidence supported Appellant’s conviction for Felony

Murder.

      For these reasons, Appellant’s eighth point of error should be overruled.




                                        85
                                 Prayer for Relief

      WHEREFORE, PREMISES CONSIDERED, there being legal and

competent evidence sufficient to justify the conviction and punishment assessed in

this case and no reversible error appearing in the record of the trial of the case, the

State of Texas respectfully prays that this Honorable Court affirm the judgment

and sentence of the trial court below.



                                               Respectfully Submitted:

                                               Jerry D. Rochelle
                                               Criminal District Attorney
                                               Bowie County, Texas
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819



                                                /s/ Samantha J. Oglesby
                                               ______________________________
                                         By:   Samantha J. Oglesby
                                               Assistant Criminal District Attorney
                                               Bowie County, Texas
                                               601 Main Street
                                               Texarkana, Texas 75501
                                               Phone: (903) 735-4800
                                               Fax: (903) 735-4819

                                               Attorneys for the State




                                          86
                           Certificate of Compliance

      I, Samantha J. Oglesby, hereby certify that, pursuant to Rule 9.4 of the

Texas Rules of Appellate Procedure, the State’s Brief contains 19,916 words. This

excludes the caption, identity of parties and counsel, table of contents, index of

authorities, statement of the case, certificate of compliance, proof of service, and

signature.




                                              /s/ Samantha J. Oglesby
                                             ______________________________
                                             Samantha J. Oglesby




                                        87
                               Certificate of Service

      I, Samantha J. Oglesby, certify that I have served a true and correct copy of

the foregoing Brief for the State upon Craig Henry, Attorney for Appellant, on this

the 12th day of March, 2015.



                                               /s/ Samantha J. Oglesby
                                              ______________________________
                                              Samantha J. Oglesby




                                         88
