                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-16-00144-CR


BRAYLON DOMINIQUE ELLIS                                          APPELLANT

                                     V.

THE STATE OF TEXAS                                                     STATE


                                  ----------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1447240R

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                                 OPINION

                                  ----------

     In three issues, Appellant Braylon Dominique Ellis appeals his conviction

for murder. See Tex. Penal Code Ann. § 19.02 (West 2011). We affirm.

                                Background

     On September 7, 2013, Andrea Brown discovered the dead body of her

older brother Tommy Brown in his home after she went to check on him out of

concern that no one had heard from or seen him for days. An investigation
revealed that Tommy had been the victim of a love triangle with Appellant and

Christina Rodriguez, whom Tommy had met as a pen pal while she was serving

time in a penitentiary.    Tommy reportedly also had a long-time romantic

relationship with a woman named Connie Moreno, who did not appear to be

involved in his death in any way. From the record, it does not appear that either

Moreno or Rodriguez was living with Tommy at the time of the murder.

      In the days following his death, the Fort Worth Police Department (FWPD)

tracked Tommy’s cell phone and debit card to a location outside of Atlanta,

Georgia, where Appellant and Rodriguez were apprehended. Although charged

with capital murder, Appellant was convicted of the lesser-included offense of

felony murder and sentenced to life in prison for his part in Tommy’s death.

Compare id. § 19.03 (West Supp. 2016) (providing elements of capital murder),

with id. § 19.02 (providing elements of felony murder).

I. The day of the murder

      In the afternoon or early evening of September 5, Willie Wingfield,

Tommy’s neighbor, saw a “white girl [who was] more heavy-set and just a little bit

shorter than Tommy” go into Tommy’s house while Tommy was home. Willie

testified that the woman was not Moreno, a Hispanic woman whom he described

as “short with long black hair” and Andrea described Moreno as approximately

5’1” to 5’2” and of average weight. Instead, Willie’s general description of the

woman he had observed more closely fit the description of Rodriguez at trial, as

a woman who was “tall and heavyset.”


                                        2
      Later that evening, between 9:30 and 10:00, Willie also saw a dark-

skinned young man with braided hair go into Tommy’s house.                According to

Willie, Tommy was not at home at that time. Later, Willie watched as Tommy

pulled his pickup into his driveway, emerged from the pickup, and walked to his

front door. Willie testified that as Tommy attempted to unlock his front door, the

front door opened, someone “snatched” Tommy and pulled him into the house,

and then the lights went off. Willie did not call the police at that point.

      The next morning, when Willie went outside to water his yard and drink

coffee—his usual morning routine—he noticed that Tommy was not partaking in

his usual morning routine of sitting on his porch, smoking a cigarette, and

drinking a coffee between 6:45 and 7:00.          Willie also noticed that Tommy’s

pickup was no longer in his driveway, so he assumed that Tommy had gone to

work early.

II. Discovery of the body and the ensuing investigation

      Andrea, who had last seen Tommy alive on September 2 or 3, received a

call from her aunt on the morning of September 7. Andrea’s aunt, who lived

across the street from Tommy, called Andrea at work to express her concern that

she had been unable to reach Tommy for a couple of days. Andrea assured her

aunt that she would call him.

      At 9:26 that morning, Andrea texted Tommy, “Call me ASAP,” but she

received no response, which, according to Andrea, was unusual for Tommy.

Andrea grew increasingly worried as the day went on, and more so when her


                                           3
aunt told her that Tommy’s car was not at his house. At approximately 3:00 that

afternoon, Andrea drove to Tommy’s home and, using a key she found in his

mailbox, Andrea went inside. Andrea testified that she immediately noticed that

some of his property, including his plasma TV, was missing, and when she

continued through the home she discovered Tommy’s body lying on the

bathroom floor. His hands were tied behind his back and his “fingers had started

turning colors.” Although she called out to him several times, Andrea testified

that she knew what was wrong, she knew it was “a crime scene,” and so she

immediately left the house and called 9-1-1.

      FWPD Detective Thomas O’Brien responded to the call. While he was

interviewing Andrea, she received a text message from Tommy’s phone that

said, “I[’]m driving to El Paso what u want?” Detective O’Brien asked Andrea to

respond to the text message she had received because the police could use the

cell phone information to track the murderer(s) and to collect more information.

On Detective O’Brien’s direction, Andrea texted back, “[O]k call me when u get

back. Have a safe trip,” but she did not reveal that Tommy’s dead body had

been found.

      Andrea was not the only person who received text messages from

Tommy’s phone after his body was discovered. On September 7, after becoming

concerned when Tommy uncharacteristically missed a janitorial job, his

coworker, Deborah Grimes, tried to reach him by phone. She received a text

back from “him” two days later, on September 9, that said:


                                        4
      Debra I wont b back no time soon I don’t know if u remember I told
      you I was gonna b a father well my girl is in the hospital and im low
      in cash is there anyway I can borrow some cash I lost my wallet im
      in the middle of the road if you can send money to my causin his
      name is Braylon Ellis, do it Money gram please just deduct it from
      my check?

The next day, Grimes received two more text messages from Tommy’s phone

claiming that he could not call because his phone was broken and asking, “How

soon can u send it to my causin do it Money Gram please.”

      Cell phone records and records for Tommy’s debit card indicated that both

were taken from Fort Worth to an area outside of Atlanta, Georgia.            From

surveillance videos, Detective O’Brien identified Appellant and Rodriguez as the

individuals using the debit card at various places, including to pay for a

prescription in Appellant’s name at Texas Health Presbyterian in Dallas.

      Appellant and Rodriguez were located and arrested on September 10 at

Appellant’s mother’s house in Gwinnett County, Georgia. Tommy’s cell phone

and driver’s license were found in the room where Appellant and Rodriguez were

staying, and Tommy’s debit card was found inside the vehicle—later identified as

the vehicle Appellant and Rodriguez drove to Georgia—parked outside the

house.

      Detective O’Brien interviewed Appellant, and a video of the interview was

admitted into evidence and played for the jury. In it, Appellant changed his story

multiple times. At first, he claimed he did not know Tommy, but later he claimed

that Tommy had beaten Rodriguez and that Tommy was a molester. He also



                                        5
initially claimed that he had never been to Fort Worth, but then added he had

been to Fort Worth as a child, and then finally admitted to Detective O’Brien that

he had picked up Rodriguez in Fort Worth and had stayed at a hotel near

Tommy’s house on the night Tommy was murdered. Although Appellant denied

that he had been to Tommy’s house, blood samples collected at the scene

matched both Appellant’s DNA profile and Rodriguez’s DNA profile.

III. The trial

      Additional testimony at trial revealed that Tommy died of asphyxia—he

was discovered with two plastic bags tied around his head with a shoelace—

blunt-force injuries to the head or neck, or a combination of both. Appellant also

took the stand in his own defense.

      Appellant testified that he fell in love with Rodriguez in early 2013 after

meeting her while riding on a bus headed to California. By March 2013, he

moved to El Paso to live with her, even though he did not know her age or that

she had served time in the penitentiary. In August 2013, they decided to move to

Georgia, where his mother lived.

      On their way to Georgia, Appellant and Rodriguez developed a plan to

stop at Tommy’s house in Fort Worth to steal from him. By that point, Appellant

was aware that Rodriguez had been in a relationship with Tommy and had

previously stolen Tommy’s wallet and credit cards several times. As part of the

plan to steal from Tommy, Appellant testified that he planned to “beat him” and




                                        6
“kick his ass” because he believed that Tommy had beaten Rodriguez and had

tried to kill her once. Appellant testified he did not intend to kill Tommy.

      Appellant admitted that, on the night of September 5, he waited in

Tommy’s house for Tommy to come home. But when Appellant heard Tommy’s

car pull up and heard Tommy come in the house with Rodriguez, he “got scared”

and ran into the bathroom. When he heard Tommy coming down the hallway,

Appellant picked up the lid to the toilet tank and hit Tommy on the head with it.

According to Appellant, the lid broke on impact with Tommy’s head and cut

Appellant’s hand, leaving Appellant’s blood in the bathroom and hallway areas.

Tommy and Appellant then began to fight in the hallway outside the bathroom

during which time Appellant estimated that he hit Tommy eight to ten times with

his fists in an attempt to knock him out. Appellant testified that, while he was

punching him, Tommy was making noises that sounded like he was in pain.

Appellant testified that he initially “knock[ed] him out,” but as Tommy began to

“wak[e] back up,” Rodriguez handed Appellant a kitchen pot with instructions to

“use this to knock him out.” After hitting Tommy with the pot “one, two, maybe

three” times—until Tommy was unconscious—Appellant bound Tommy’s hands

behind his back with a shoelace. Even after that, according to Appellant, Tommy

woke up again and—in “trying to get away”—managed to move himself from the

hallway where he had been tied up and into the bathroom.                According to

Appellant, he cleaned himself up, put a makeshift bandage on his wound, left

Tommy’s house shortly thereafter and walked to his car, which was parked


                                          7
around the corner.    On his way out of the house, Appellant took Tommy’s

television and loaded it into Tommy’s pickup. Rodriguez then drove the pickup to

a nearby convenience store, where she met Appellant. According to Appellant,

Rodriguez then moved Tommy’s television and two bags—containing, among

other items, Tommy’s wallet, credit cards, and cell phone—from the pickup into

Appellant’s car, and the two then abandoned Tommy’s pickup in the parking lot

where it was later found by FWPD.

      Appellant and Rodriguez later went to Texas Health Presbyterian hospital

in Dallas to seek treatment for Appellant’s hand. After using Tommy’s debit card

to pay for Appellant’s prescription, the pair headed to Georgia. Appellant testified

that it was Rodriguez who sent the text messages to Andrea and Grimes on their

way to Georgia and that he was not aware that she was sending the text

messages at the time.     He did, however, admit that he had knowingly used

Tommy’s debit card on their way to Georgia.

       At trial, Appellant denied tying any plastic bags over Tommy’s head or

wrapping tape or a shoelace around Tommy’s neck. He denied any intent to kill

Tommy or take his property, although he admitted that he knew Rodriguez

planned to steal from Tommy. Appellant’s only intent, he claimed, was to “kick

his ass.”

                                   Discussion

      In his first issue, Appellant argues that the trial court erred by denying his

motion to suppress the recorded statement made to Detective O’Brien because


                                         8
Appellant did not clearly and unequivocally waive his rights. Appellant’s second

and third issues argue that the trial court erred by overruling his objections to the

admission of reproduced cell phone text messages.

I. Motion to Suppress

      We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.    Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical

fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

      Detective O’Brien interviewed Appellant on September 11, 2013. A video

recording of the interview was admitted into evidence. Detective O’Brien read

Appellant his Miranda1 rights and then asked Appellant if he knew how to read, to

which Appellant responded, “Yes.” Detective O’Brien then asked Appellant to

read the following portion of the waiver form, which he did: “I have read and


      1
        See Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602, 1612 (1966).
The Texas Code of Criminal Procedure expressly delineates the requirements
of Miranda by requiring officers to inform people of their rights prior to custodial
interrogation in order for resulting statements to be admissible. Tex. Code. Crim.
Proc. Ann. art. 38.22 § 3 (West Supp. 2016).


                                         9
understand my legal rights as stated above on this document. I freely, voluntarily,

and knowingly waive these legal rights and agree to be interviewed by police.”

Appellant then signed the waiver form.

      At trial, Appellant’s counsel moved to suppress the video, arguing that the

above did not constitute a valid waiver in accordance with article 38.22 because

Detective O’Brien did not specifically ask Appellant if he waived his rights. See

Tex. Code Crim. Proc. Ann. art. 38.22. The trial court denied the motion and

subsequently entered written findings of fact that Detective O’Brien advised the

defendant of his rights, that the defendant read aloud the waiver portion of the

written warnings, and that the defendant signed that he understood his rights and

that he was freely and voluntarily waiving them.

      Appellant has provided us with no support for his argument that Detective

O’Brien was required to verbally ask if Appellant waived his rights. 2 Under the

facts here, we decline to read such a requirement into the rule and, having

reviewed the video recording and Detective O’Brien’s testimony, find that these

support the trial court’s fact findings. See Leza v. State, 351 S.W.3d 344, 353

(Tex. Crim. App. 2011) (“[W]e have consistently held that waiver of Article 38.22

rights ‘may be inferred from actions and words of the person interrogated.’”);



      2
       We note that it is the party’s responsibility to fully brief an argument and to
provide legal authority to support its position. See Tex. R. App. P. 38.1(i); Lucio
v. State, 351 S.W.3d 878, 896 (Tex. Crim. App. 2011), cert. denied, 132 S. Ct.
2712 (2012).


                                         10
Bleil v. State, 496 S.W.3d 194, 208–09 (Tex. App.—Fort Worth 2016, pet. ref’d).

We therefore overrule Appellant’s first issue.

II. Admission of text messages

      Appellant’s second issue argues that the admission of the reproduced text

messages violated the prohibition against hearsay. His third issue argues that

their admission violated the best evidence rule.

      We review a trial court’s decision to admit evidence for abuse of discretion.

Mai v. State, 189 S.W.3d 316, 320 (Tex. App.—Fort Worth 2006, pet. ref’d). If

the court’s decision falls outside the “zone of reasonable disagreement,” it

has abused its discretion. Id.

      FWPD Sergeant Troy Lawrence testified that he analyzed Tommy’s cell

phone and had attempted to download the text messages stored on the phone,

but he was not able to do so because it was a “throwaway” or “burner” phone and

the USB port on that sort of phone cannot be used for downloading data from the

phone. Sergeant Lawrence described that, in situations when they are not able

to directly download data from a phone, the FWPD transcribes the texts and call

logs by manually typing them into an Excel spreadsheet. According to Sergeant

Lawrence, he followed this procedure in this case, and after the texts were

transcribed, another examiner in the lab peer reviewed his work to verify its

accuracy. At trial he identified the resulting exhibits, State’s Exhibit 140 and 141,

as true and accurate depictions of text conversations between Andrea’s phone




                                         11
and Tommy’s phone and between Grimes’s phone and Tommy’s phone, as

observed on Tommy’s phone after it was recovered.

     Exhibit 140 replicated the following texts between Andrea’s and Tommy’s

phones:

     [Andrea:] call me ASAP [Date stamp 9/7/2013]

     [Tommy’s phone:] Im driving to El Paso what u want? [Date stamp
     9/7/2013]

     [Andrea:] ok call me when u get back. Have a safe trip.

Exhibit 141 replicated texts between Grimes’s and Tommy’s phones:

     [Grimes:] Call me [Date stamp 9/7/13]

     [Tommy’s phone:] Im driving to El Paso had a emergency [Date
     stamp 9/7/13]

     [Grimes:] Your buildings are covered for the weekend. Call me as
     soon as you get back.

     [Tommy’s phone:] Thank you. So much ..

     [Grimes:] Is the back pack at the kennel? [Date stamp 9/7/13]

     [Tommy’s phone:] Debra I wont b back no time soon I don’t know if u
     remember I told you I was gonna b a father well my girl is in the
     hospital and im low in cash is there anyway I can borrow some cash
     I lost my wallet im in the middle of the road if you can send money to
     my causin his name is Braylon Ellis, do it Money gram please just
     deduct it from my check? [Date stamp 9/9/13]

     [Grimes:] I am very worried about you. I have your check from last
     month do you rill need [Date stamp 9/10/13]

     [Grimes:] Do you still need me to send your money to Braylon Ellis.
     Please let me know. I hope your girl and baby are okay.




                                      12
      [Tommy’s phone:] Yes don’t b worried im fine as soon as my girl
      gets release im taking her and the baby back with me. I just dropp
      my phone its cracked I can’t call li can only tex

      [Tommy’s phone:] How soon can u send it to my causin do it Money
      gram please. [Date stamp 9/10/13]

      Appellant’s counsel objected to the admission of Exhibits 140 and 141,

arguing that the text messages constituted hearsay and that their admission

would violate the best evidence rule. The trial court initially sustained Appellant’s

objections but later overruled the objections after Detective O’Brien testified that

the phone was recovered from the house in Georgia where Appellant and

Rodriguez had been staying.

      A. Hearsay objection

      In response to Appellant’s hearsay objection at trial, the State argued

alternatively that (1) the text messages were not hearsay because they were not

being offered for the truth of the matter asserted, see Tex. R. Evid. 801(d)(2),

and (2) if the text messages were hearsay, they were admissible under the party-

opponent exception, see Tex. R. Evid. 801(e)(2). At trial and in his brief to this

court, Appellant has only responded to the State’s argument that the text

messages are admissible statements of a party-opponent or coconspirator. And,

although the State has not reurged this argument on appeal, we agree with its

position at trial that the text messages between Tommy’s phone and Andrea’s

and Grimes’s phones were not hearsay because they were not offered for the

truth of the matter asserted. See Martinez v. State, 91 S.W.3d 331, 336 (Tex.



                                         13
Crim. App. 2002) (“appellate courts may uphold a trial court’s ruling on any legal

theory or basis applicable to the case”).

      Texas Rule of Evidence 802 provides that hearsay is generally

inadmissible, but for a document or statement to meet the definition of hearsay, it

must be offered to prove the truth of the matter asserted therein. Tex. Rule Evid.

801(d)(2) (defining hearsay as an out-of-court statement offered “to prove the

truth of the matter asserted in the statement”). But see Tex. R. Evid. 802, 803,

804 (characterizing certain out-of-court statements as nonhearsay and providing

exceptions to the hearsay rule).      Here, the relevance of the text message

conversations was not in any way dependent upon the truth of the messages

themselves.    In fact, on this record, it could hardly be disputed “Tommy’s”

messages to Andrea and to Grimes were manifestly false. Instead, the relevancy

hinged on the text messages being purportedly sent by Tommy from his phone

after Tommy’s dead body had already been discovered, combined with the

discovery of Tommy’s phone in Appellant’s and Rodriguez’s possession after

they were apprehended in Georgia. See Huff v. State, 560 S.W.2d 652, 653

(Tex. Crim. App. [Panel Op.] 1978) (holding that evidence of defendant’s license

plate number written on back of forged check was not hearsay because it was

offered to describe relevant details of transaction surrounding forged check);

Utsey v. State, 921 S.W.2d 451, 455 (Tex. App.—Texarkana 1996, pet. ref’d)

(holding bus tickets were not hearsay when offered “to show the circumstantial

relationship of the parties to the scene, the contraband, or other parties,” not to


                                        14
show the truth of the matter asserted on the tickets themselves); see also Norton

v. State, 564 S.W.2d 714, 717 (Tex. Crim. App. [Panel Op.] 1978) (holding

evidence of telephone conversations between appellant and police in prosecution

for making a false report were not hearsay because they were evidence of

operative facts of whether communications were made and not their truth or

falsity).

       We hold the trial court did not abuse its discretion by admitting the text

message conversations over Appellant’s hearsay objection.

       B. Best evidence rule

       Appellant also argues that the text message conversations were

inadmissible under the best evidence rule. The best evidence rule provides that

an original writing, recording, or photograph is required to prove its content. Tex.

R. Evid. 1002. For electronically stored information, rule of evidence 1001(d)

defines an “original” as “any printout—or other output readable by sight—if it

accurately reflects the information.” Tex. R. Evid. 1001(d); cf. Burleson v. State,

802 S.W.2d 429, 441 (Tex. App.—Fort Worth 1991, pet. ref’d) (holding that a

computer-generated “display,” on which a witness relied, qualified as an original

under the best evidence rule because it was an “output other than a print-out”

that was readable by sight, even though a hard copy of the display was not

admitted into evidence). When a “print-out” or “other output” is not obtainable,

rule of evidence 1004(b) allows the content of the original to be proven through

“other evidence” of its content. Tex. R. Evid. 1004(b) (providing that an original is


                                         15
not required if it “cannot be obtained by any available judicial process); see also

United States v. Jackson, 488 F. Supp. 2d 866, 871 (D. Neb. 2007) (holding cut-

and-paste document of text messages were inadmissible under federal rule 1004

because evidence showed the text message conversation had been altered and

was inaccurate).

      Sergeant Lawrence testified that the USB port on Tommy’s phone would

not allow him to directly download the text messages it stored. So, Sergeant

Lawrence retrieved the content of the electronically stored messages by

transcribing the texts and call logs—by manually typing them into an Excel

spreadsheet.    This information, in turn, was formatted into a “bubble” form

commonly used to represent text messages. The resulting document was then

peer reviewed to ensure its accuracy.        Sergeant Lawrence testified that the

resulting exhibits were true and accurate depictions of text message

conversations as stored on Tommy’s phone.

      Even assuming, without holding, that the process Sergeant Lawrence

employed to generate exhibits 140 and 141 did not meet the rule 1001(d)

definition of “original”—as a “printout” or “other output”—Sergeant Lawrence’s

testimony   nevertheless    supports   the   admission    of   the   text   message

conversations as “other evidence” when the original cannot be obtained. See

Tex. R. Evid. 1004. At that point, any challenge by Appellant would go “not . . . to

admissibility but to the weight to be given the evidence, with final determination




                                        16
left to the trier of fact.” United States v. Gerhart, 538 F.2d 807, 809 (8th Cir.

1976) (discussing the federal equivalent of Texas rule of evidence 1004).

      Thus, the trial court did not abuse its discretion by overruling Appellant’s

objection on this basis. See Ortiz v. State, 651 S.W.2d 764, 766 (Tex. Crim.

App. 1983) (noting the purpose of the best evidence rule is to secure production

of the “best obtainable evidence of its contents, if the document cannot as a

practical matter be produced”); Howell v. Howell, No. 13-10-00687-CV, 2013 WL

784542, at *7 (Tex. App.—Corpus Christi Feb. 28, 2013, no pet.) (mem. op., not

designated for publication) (holding trial court did not err by allowing witness to

read text message aloud after counsel represented that a document of the text

message was not obtainable).

      We hold the trial court did not err by admitting the text message

conversations based on the best evidence rule.

      C. Any error in admitting the text messages was harmless

      Even if the trial court erred by admitting the text message conversations,

Appellant was not harmed by their admission.          Any error in the trial court’s

admission of the text messages is nonconstitutional, see Solomon v. State, 49

S.W.3d 356, 365 (Tex. Crim. App. 2001), so we apply rule 44.2(b) and disregard

the error if it did not affect appellant’s substantial rights, Tex. R. App. P. 44.2(b);

see Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on reh’g),

cert. denied, 526 U.S. 1070 (1999).




                                          17
      A substantial right is affected when the error had a substantial and

injurious effect or influence in determining the jury’s verdict. King v. State, 953

S.W.2d 266, 271 (Tex. Crim. App. 1997) (citing Kotteakos v. United States, 328

U.S. 750, 776, 66 S. Ct. 1239, 1253 (1946)). Conversely, an error does not

affect a substantial right if we have “fair assurance that the error did not influence

the jury, or had but a slight effect.” Solomon, 49 S.W.3d at 365; Johnson v.

State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998).                  In making this

determination, we review the record as a whole, including any testimony or

physical evidence admitted for the jury’s consideration, the nature of the

evidence supporting the verdict, and the character of the alleged error and how it

might be considered in connection with other evidence in the case. Motilla v.

State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002). We may also consider the

jury instructions, the State’s theory and any defensive theories, whether the State

emphasized the error, closing arguments, and even voir dire, if applicable. Id. at

355–56.

      In this case, perhaps most significantly, the jury had the benefit of

Appellant’s own testimony.     In his testimony, Appellant admitted that he and

Rodriguez went to Tommy’s house, that Appellant laid in wait for Tommy to come

home with the intention of “kicking his ass,” that Appellant struck Tommy’s head

with a ceramic toilet tank lid so hard that it broke on impact, that Appellant

repeatedly punched Tommy until he passed out at least once, that Appellant hit

Tommy up to three times with a kitchen pot, and that Appellant tied Tommy’s


                                         18
hands behind his back so that he could not escape. Although Appellant denied

strangling Tommy or tying the plastic bags around his head, the medical

examiner testified that Tommy could have died from blunt-force trauma alone.

       Considering this evidence, in addition to the evidence that Appellant’s

blood was found at the scene and that he was in possession of and had used

Appellant’s debit card on his journey to Georgia, we cannot say that any

erroneous admission of the text message exhibits had a substantial or injurious

effect on the jury’s verdict.   See Black v. State, 358 S.W.3d 823, 833 (Tex.

App.—Fort Worth 2012, pet. ref’d) (erroneous admission of hearsay text

messages did not have a substantial or injurious effect in light of other evidence

of Appellant’s guilt). We overrule Appellant’s second and third issues.

                                   Conclusion

       Having overruled each of Appellant’s issues, we affirm the judgment of the

trial court.



                                                  /s/ Bonnie Sudderth
                                                  BONNIE SUDDERTH
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and SUDDERTH, JJ.

PUBLISH

DELIVERED: April 20, 2017




                                        19
