                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-13-00200-CR


DAVON PAUL BARRETT                                                APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE


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         FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY

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                       MEMORANDUM OPINION 1

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     Davon Paul Barrett appeals from his conviction and sixty-year sentence for

aggravated robbery with a deadly weapon.        In four points, he challenges

(1 & 2) the sufficiency of the evidence to support that he was the person who

committed the offense and the deadly weapon finding, (3) the trial court’s




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      See Tex. R. App. P. 47.4.
admission of evidence under the rule of optional completeness, and (4) the trial

court’s admission of extraneous-offense evidence. We affirm.

                           Sufficiency of the Evidence

      In his first and second points, appellant argues that the evidence is

insufficient to prove that he was the man who took the complainant’s purse and

to prove that he used or exhibited a deadly weapon. Accordingly, we will recite

the factual background in our review of these two points.

Applicable Facts

      On January 10, 2012, the complainant stopped to fill up her car at a 7-

Eleven off Highway 360 in Grand Prairie. She had $400 to $450 in cash in

varying denominations in her purse; she had a mix of pesos and United States

currency. The complainant had placed her purse under her front seat when she

got out of her car. As she was getting back into her car after filling up, she felt a

gun being stuck into the left side of her back near her rib cage. She could see

the hand of the person who was holding the gun, and she saw the gun. Although

she could tell that the person holding the gun was a black male, she did not look

at the man’s face. The complainant also saw that the man was wearing a light-

colored white, cream, or beige long-sleeve sweater.

      The complainant ran away from the man to a nearby white van. After she

circled around the van, she saw that man and another man get inside a car that

left the gas station and went south on Highway 360 toward I-30. She did not get




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a good look at the second man. Upon returning to her car, she discovered that

her purse was gone.

      The complainant called 9-1-1 at 1:31 p.m. She told the dispatcher that she

had been robbed at gunpoint by two black males who were in a beige or light

yellow PT Cruiser heading down Highway 360 toward I-30. After being shown a

video from the 7-Eleven, the complainant agreed that the car the men got into

appeared to be silver. She also testified that the video accurately depicted a

man in a white shirt approaching her and then getting into a car along with a man

in a black shirt after she had run away.

      Because the complainant is not a native English speaker, the Grand

Prairie police officers who originally responded to the 7-Eleven had a difficult time

communicating with her. When asked the color of the car the men got into, she

pointed to the 7-Eleven building, which had a tan or beige part along with a gray

part, but the officers could not tell which color she meant. When Officer Oscar

Garcia arrived, he was able to speak to the complainant in Spanish. Although

she was hysterical and teary-eyed, she told him that a black male had robbed her

at gunpoint, he had stuck a gun into her left side, the driver of the car that left the

gas station afterward wore a white or light-colored sweatshirt, the passenger

wore a black hooded jacket, and the car was “gris,” or gray.

      After about twenty minutes, Officer Garcia took the complainant to the

police station where a detective interviewed her. As the complainant was sitting

inside the police station, she saw the car into which the man who robbed her had


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fled being driven into the parking lot. The complainant gave a written statement

to the police, who gave her purse back to her while she was at the station. She

was at the station for about two hours.

      While some officers responded directly to the complainant, other officers

were looking for the car with the suspects. Police Chief Steve Dye and Assistant

Chief Don Trask heard the robbery call and description of the car around 1:34

p.m. as they headed back to Grand Prairie police headquarters from lunch. At

1:43 p.m., Chief Dye saw a silver four-door Chevrolet HHR at the gas pumps of

the E-Z Mart on Mayfield and Highway 360. The E-Z Mart is about six and a half

miles away from the 7-Eleven. Chief Dye testified that the body style of an HHR

is similar to a PT Cruiser.

      When Chief Dye pulled into the parking lot of the E-Z Mart, he saw two

black males who appeared to “be associated with” the HHR. One of the men

was wearing a white hooded sweatshirt, and the other was wearing a black

hooded sweatshirt. Although Chief Dye’s car was unmarked, he and Assistant

Chief Trask were both in uniform. When the two men with the HHR saw Chief

Dye and Assistant Chief Trask, the man in the black sweatshirt walked toward

the front of the store and disappeared. Chief Dye thought he had gone into the

store. The man in the white hooded sweatshirt finished pumping gasoline into

the silver HHR, went inside the store, came back out, and drove away in the car.

Chief Dye thought it suspicious that he had left without the other man.      At

1:47 p.m., Officer Greg New, who had by that time responded to the 7-Eleven


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and viewed the surveillance video there, broadcast that the suspect vehicle was

possibly silver; this led Chief Dye to believe that the HHR may have been the car

that the complainant had seen. Chief Dye told Assistant Chief Trask to go inside

the E-Z Mart to look for the man in the black hooded sweatshirt and detain him;

after Assistant Chief Trask got out of the car, Chief Dye followed the man driving

the HHR.

      Chief Dye stopped the driver of the HHR around 1:51 p.m.; at trial he

identified the driver as appellant and testified that he was driving the same HHR

that had been at the E-Z Mart.         Appellant was wearing a white hooded

sweatshirt, and he was nervous. When Chief Dye asked appellant where he had

been and if anyone had been with him at the E-Z Mart, appellant initially lied and

said he had been alone and that he had been coming from a different direction

than the E-Z Mart. Chief Dye arrested appellant, but another officer arrived to

take appellant to jail. When police booked appellant into the Grand Prairie jail,

they found $258 in cash on him.

      After Chief Dye left the E-Z Mart to follow appellant, Assistant Chief Trask

searched for the other man in the store, but he could not find him. He and other

officers watched surveillance video from the E-Z Mart. On the video, officers saw

the man in the black sweatshirt get out of the passenger side of the car, go to the

trash can, bend down, and then go back to the car.             Officers found the

complainant’s stolen purse in the trash can.




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       The detective who investigated the case testified that the HHR had a paper

dealer’s tag over the metal license plate; the paper tag belonged to a woman in

Euless, but when the detective ran the number on the metal plate, it came back

registered to appellant’s mother. He also testified that the police never found a

gun.

       Appellant contends that the evidence is sufficient to support only a

speculation that he was the man who held a gun on the complainant and that the

jury could not have reasonably concluded that he was the robber based on the

discrepancies in the complainant’s description of the suspect’s shirt and car: she

said the man was wearing a sweater, not a hoodie, and she described the car as

a yellow or beige PT Cruiser. Appellant also highlights the fact that he was found

with only United States, not Mexican currency, that there are no forensics tying

him to the crime, that the police never recovered a gun, and that the complainant

could not identify him in a photo lineup.

Analysis

       Identity may be proven by direct or circumstantial evidence, coupled with

all reasonable inferences from that evidence. Gardner v. State, 306 S.W.3d 274,

285 (Tex. Crim. App. 2009), cert. denied, 131 S. Ct. 103 (2010). As the court of

criminal appeals has explained about circumstantial evidence,

       Each fact need not point directly and independently to the guilt of the
       appellant, as long as the cumulative force of all the incriminating
       circumstances is sufficient to support the conviction. Circumstantial
       evidence is as probative as direct evidence in establishing the guilt



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      of an actor, and circumstantial evidence alone can be sufficient to
      establish guilt.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citations omitted);

Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d).

      We defer to the jury’s resolution of any discrepancies in the complainant’s

description of events, some of which can be explained by her difficulty

communicating in English, especially while upset. See Jackson v. Virginia, 443

U.S. 307, 326, 99 S. Ct. 2781, 2793 (1979); Temple v. State, 390 S.W.3d 341,

360 (Tex. Crim. App. 2013). From the video recorded at the 7-Eleven and played

for the jury, it can be seen that the man in the white sweatshirt approached the

complainant, who then ran away; that both men approached the complainant’s

car; and that both men got into a silver car and drove away. The complainant

identified that car at trial as the one that pulled into the police station’s parking lot

while she was there.      The evidence shows that the same car was the one

appellant was driving when Chief Dye stopped him and that the car was

registered to appellant’s mother. We conclude that a rational jury could have

determined beyond a reasonable doubt that appellant was the person who

robbed the complainant.       See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;

Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).

      Appellant additionally contends that there is no evidence that he used a

real gun during the commission of the offense. The complainant testified that the

object thrust into her side was a gun, that it was silver, and that it looked like the



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guns worn by police officers. Based on this testimony, the jury could draw the

reasonable inference that appellant used a real gun. See Rogers v. State, 795

S.W.2d 300, 303 (Tex. App.––Houston [1st Dist.] 1990, pet. ref’d). We overrule

appellant’s first and second points.

    Admission of Police Call Notes Under Optional Completeness Rule

      In his third point, appellant contends that the trial court abused its

discretion by admitting evidence containing hearsay under the rule of optional

completeness. See Tex. R. Evid. 107. When the State initially offered the call

notes from the police department’s communication center––consisting of the

transcription of officers’ calls to report offenses––the trial court sustained

appellant’s objection that they contained hearsay. While cross-examining Chief

Dye, appellant questioned him about specific times and entries listed in the

version of the document that Chief Dye was using to refresh his memory.

According to appellant, that is the only purpose for which the document was used

during cross-examination. Thereafter, the State re-offered the entire document

under the rule of optional completeness, and the trial court admitted it.

      Appellant claims the trial court abused its discretion in admitting the exhibit

because the parts of the document used by the defense were not false or

misleading, nor did they leave a false impression with the jury. Additionally, he

claims that the entire document was unnecessary and that only parts of the

document were corrective and on the same subject. Appellant claims that he




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was harmed because the prejudicial effect of the document was exacerbated by

the State’s extensive usage of the hearsay portions of it on redirect.

      When the State offered the evidence in accordance with the rule of

optional completeness, appellant’s counsel’s only objections were “hearsay” and

that Chief Dye had “used it to refresh his memory with [counsel], and that’s not

the one he used for [appellant’s counsel].” Because appellant’s arguments on

appeal do not comport with his trial objection, they were not preserved for review.

See Tex. R. App. P. 33.1(a)(1); Hailey v. State, 413 S.W.3d 457, 465 n.2 (Tex.

App.––Fort Worth 2012, pet. ref’d). We overrule his third point.

                               Extraneous Offense

      In his fourth point, appellant argues that the trial court reversibly erred by

admitting evidence of an extraneous offense: that when Chief Dye pulled him

over he was driving with his license suspended (DWLS). According to appellant,

the evidence was admissible solely for character conformity and was

substantially more prejudicial than probative. At trial, appellant’s only objection to

the evidence was “extraneous”; he did not cite a rule. Nevertheless, the trial

court sua sponte granted appellant a running objection.         By objecting to the

evidence as “extraneous,” appellant preserved only a complaint that the evidence

is not admissible under rule 404(b) because it served “no probative purpose.”

See Tex. R. App. P. 33.1(a); Montgomery v. State, 810 S.W.2d 372, 387–88

(Tex. Crim. App. 1991) (op. on reh’g).




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      Even assuming the trial court abused its discretion by admitting the

evidence under rule 404(b), any error was harmless.         See Tex. R. App. P.

44.2(b); Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000). The State

spent very little time developing the evidence, which was minor compared to the

rest of the evidence implicating appellant in the robbery. The trial court included

a 404(b) limiting instruction in its jury charge. See Higginbotham v. State, 356

S.W.3d 584, 593 (Tex. App.––Texarkana 2011, pet. ref’d). Additionally, the State

did not mention the offense in its closing argument. We overrule his fourth point.

                                   Conclusion

      Having overruled appellant’s four points, we affirm the trial court’s

judgment.


                                                   /s/ Terrie Livingston

                                                   TERRIE LIVINGSTON
                                                   CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: June 5, 2014




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