                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-08-131-CR


TARRENCE LAMONE STEVENSON                                      APPELLANT

                                     V.

THE STATE OF TEXAS                                                  STATE

                                 ------------

     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY

                                 ------------

                                 OPINION

                                 ------------

                              I. Introduction

     In four issues, Appellant Tarrence Lamone Stevenson appeals his murder

conviction and life sentence. We affirm.
                          II. Procedural Background

      The State charged Stevenson with the capital murder of Syed Karim, who

was shot during the course of a convenience store robbery. Stevenson pleaded

not guilty. A jury found him guilty of murder and sentenced him to confinement

for life, and the trial court entered judgment on that verdict.    This appeal

followed. 1

                       III. Sufficiency of the Evidence

      In his first issue, Stevenson complains that the evidence is legally and

factually insufficient to convict him of murder.

      As an initial matter, the State contends that Stevenson forfeited this

complaint because he did not object to the submission of murder as a lesser-

included offense and accepted the benefits of that charge.       To support its

argument, the State refers us to State v. Lee, 818 S.W.2d 778, 781 (Tex.

Crim. App. 1991), and Bradley v. State, 688 S.W.2d 847, 853 (Tex. Crim.

App. 1985), both of which the State acknowledges were overruled on other

grounds by Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998).




      1
       … Because Stevenson challenges the legal and factual sufficiency of the
evidence to sustain his murder conviction, we will review the facts of this case
in greater detail below.

                                       2
      Stevenson has not forfeited this complaint. In McKinney v. State, the

court of criminal appeals addressed Bradley and Lee, stating:

      [b]ecause the concern is ensuring that the essential elements of the
      offense are proven beyond a reasonable doubt, it makes little sense
      to preclude a defendant from challenging the legal sufficiency of
      the evidence on appeal simply because he requested and received
      an instruction on a lesser-included offense. Likewise, it makes little
      sense to extend the estoppel rule to preclude a defendant from
      challenging the factual sufficiency of the evidence.

              Thus, we hold that the estoppel rule will not be applied to all
      criminal cases where the legal sufficiency of the evidence is
      challenged and a lesser-included offense instruction is requested
      and received, nor should the rule be extended to preclude
      challenges to factual sufficiency. On the contrary, application of
      this estoppel rule should be confined exclusively to the limited
      number of cases that challenge the sufficiency of the evidence as
      it relates to the sudden-passion element of voluntary manslaughter
      and that arose before September 1, 1994.

207 S.W.3d 366, 374 (Tex. Crim. App. 2006) (emphasis added). 2

A. Standards of Review

      In reviewing the legal sufficiency of the evidence to support a conviction,

we view all of the evidence in the light most favorable to the prosecution in

order to determine whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.             Jackson v.



      2
      … The State also refers us to Otting v. State, 8 S.W.3d 681, 686–87
(Tex. App.—Austin 1999, pet. ref’d, untimely filed), which involved the
estoppel rule as applied to factual sufficiency. Per McKinney, it is inapposite.
See 207 S.W.3d at 374.

                                        3
Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Furthermore, we must consider

all the evidence admitted at trial, even improperly admitted evidence, when

performing a legal sufficiency review. Clayton, 235 S.W.3d at 778; Moff v.

State, 131 S.W.3d 485, 489–90 (Tex. Crim. App. 2004). The standard of

review is the same for direct and circumstantial evidence cases; circumstantial

evidence is as probative as direct evidence in establishing an actor’s guilt.

Clayton, 235 S.W.3d at 778; Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim.

App. 2007).

      When reviewing the factual sufficiency of the evidence to support a

conviction, we view all the evidence in a neutral light, favoring neither party.

Steadman v. State, 280 S.W.3d 242, 246 (Tex. Crim. App. 2009); Watson v.

State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). We then ask whether

the evidence supporting the conviction, although legally sufficient, is

nevertheless so weak that the factfinder’s determination is clearly wrong and

manifestly unjust or whether conflicting evidence so greatly outweighs the

evidence supporting the conviction that the factfinder’s determination is

manifestly unjust. Steadman, 280 S.W.3d at 246; Watson, 204 S.W.3d at

414–15, 417. To reverse under the second ground, we must determine, with

some objective basis in the record, that the great weight and preponderance of

                                       4
all the evidence, although legally sufficient, contradicts the verdict. Watson,

204 S.W.3d at 417.

      Unless we conclude that it is necessary to correct manifest injustice, we

must give due deference to the factfinder’s determinations, “particularly those

determinations concerning the weight and credibility of the evidence.” Johnson

v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W.3d

at 246. Evidence is always factually sufficient when it preponderates in favor

of the conviction. Steadman, 280 S.W.3d at 247; see Watson, 204 S.W.3d

at 417.

      In determining whether the evidence is factually insufficient to support a

conviction that is nevertheless supported by legally sufficient evidence, it is not

enough that this court “harbor a subjective level of reasonable doubt to

overturn [the] conviction.” Watson, 204 S.W.3d at 417. We cannot conclude

that a conviction is clearly wrong or manifestly unjust simply because we would

have decided differently than the jury or because we disagree with the jury’s

resolution of a conflict in the evidence. Id. We may not simply substitute our

judgment for the factfinder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958

S.W.2d 404, 407 (Tex. Crim. App. 1997). Unless the record clearly reveals

that a different result is appropriate, we must defer to the jury’s determination

of the weight to be given contradictory testimonial evidence because resolution

                                        5
of the conflict “often turns on an evaluation of credibility and demeanor, and

those jurors were in attendance when the testimony was delivered.” Johnson,

23 S.W.3d at 8. Our deference in this regard safeguards the defendant’s right

to a trial by jury. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App.

2008). A factual sufficiency review of circumstantial evidence is the same as

a review of direct evidence. King v. State, 29 S.W.3d 556, 565 (Tex. Crim.

App. 2000); Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999)

(reasoning that “[c]ircumstantial evidence, by itself, may be enough to support

the jury’s verdict”).

B. Murder

      The jury convicted Stevenson of felony murder. See Tex. Penal Code

Ann. § 19.02(b)(3) (Vernon 2003).          The indictment charged him with

intentionally causing the death of Sayed Karim by shooting him with a firearm

during the course of committing or attempting to commit the offense of

robbery—that is, capital murder. See id. § 19.03(a)(2) (Vernon Supp. 2009).

Murder is a lesser-included offense of capital murder, and a lesser-included

offense instruction on felony murder was included in the trial court’s charge to

the jury, as well as an instruction on the law of parties. Id. § 7.01 (Vernon

2003), §§ 19.02(b)(3), 19.03(c).      A person commits felony murder if he

commits or attempts to commit a felony (i.e., robbery) and, in the course of and

                                       6
in furtherance of the commission or attempt, or in immediate flight therefrom,

he commits or attempts to commit an act clearly dangerous to human life that

causes the death of an individual. Id. § 19.02(b)(3). Under the law of parties,

“[a] person is criminally responsible as a party to an offense if the offense is

committed by his own conduct, by the conduct of another for which he is

criminally responsible, or by both.” Id. § 7.01(a).

C. Evidence at Trial

      1. Crime Scene

            a. The Shooting

      The murder of Sayed Karim occurred on the night of April 13, 2005, at

Terry’s Food Mart on Hemphill Road in Fort Worth. Patrick Kilpatrick and his

wife, Brenda, 3 testified that they stopped at the store around 10:20 p.m. so

that Patrick could talk with Karim about a used big screen television that Karim

wanted to purchase. While Patrick and Karim talked at the counter, Brenda

went to get herself a Pepsi and a six-pack of beer for Patrick.

      As Brenda started to pay for their beverages, two black men entered the

store and one screamed, “This is a robbery, fools!” Patrick described the two

men as wearing black clothing—hooded sweatshirts and ski-type masks “like



      3
      … Both testified that they had spent time in prison. The last time Patrick
was in trouble with the law was in 1991; Brenda’s last time was in 1987.

                                       7
those insurgents [in Iraq].” Brenda testified that all she could see were their

eyes. The shorter man, standing in front of Karim, had a gun. The taller man

stood facing the door on the opposite side of the store, by the beer cooler.

Patrick and Brenda both testified that there was also a third man in the store,

a young black male who was not wearing a mask, had hair in braids with

beads, wore a Cleveland Browns football jersey, and did not appear to them to

be involved in the robbery. Patrick testified that Stevenson was not the young

man with the braids.

       Brenda testified that at the gunman’s order Karim immediately opened the

cash register, pulled out the till, and threw it on the counter. Patrick testified

that Karim pleaded for his life after he put the cash drawer on the counter, but

the gunman demanded more. Brenda backed away, ran into a store employee,

and got behind one of the aisles—she used the employee’s cell phone to call

911. Patrick got behind one of the other aisles and used his cell phone to call

911.

       Brenda testified that she did not see Karim get shot but that she saw him

stagger from behind the counter after the gunman shot him and that he was

holding his side and “there was blood everywhere.” Patrick testified that Karim

yelled for someone to call 911 and then fell to the floor.        Karim actually

managed to call 911 himself.

                                        8
      Grant Fredericks, a forensic video analysis expert, testified that he

overlaid the 911 calls onto the surveillance videotape and developed powerpoint

slides from the video images. Fredericks played the videotape with the three

911 calls for the jury, describing the events as follows:

•     The first male enters at 10:40:42 p.m. and retrieves something from the
      cooler. He has “little reflective events in his hair.” He is taller than five
      feet, eight inches “probably by several inches.”

•     The second male enters twenty seconds later, at 10:41:03. He is
      significantly shorter than the other two males. At 10:42:09, he is in
      front of the counter and moves an object in his right hand pointed directly
      at the clerk—“as we follow and track this object, it’s obviously the gun
      and it’s eventually fired.”

•     The third male enters behind the second male. Both the second and third
      males are wearing things that cover their heads.

•     At 10:41:50, Karim pulls the cash drawer out.          The shot is fired at
      10:41:53.

•     After the second male fires the shot, he disappears from the camera’s
      view. The first male reaches on the counter and appears to sweep the
      objects, the money that remained on the counter, off the counter and
      follows the second male.

            b. The Escape

      Gabriel Rojas testified that he witnessed the shooting from inside his

car—he had driven to the convenience store to pick up some things for his

grandfather and saw a man dressed all in black emerge from the store. Then,

as he pulled in, he saw another man, wearing a black, hooded sweater, pointing



                                        9
a gun at the clerk. He then backed his car up, heard a gunshot, and pulled into

the Shell gas station next door, where he saw a black car—what he thought

was a four-door Toyota Camry—parked next to the car wash. He saw a man

with a black hood run towards the passenger side and get inside the vehicle.

He testified that there had been three men in black: the one who left, wearing

a sweater; one in the back of the store next to the beer cooler; and the one

with the gun.

      Kristen Pyles testified that she stopped at the Shell station and saw a

parked, dark-colored, four-door car, which she described as “an older Honda or

something.”     She testified that she almost hit two men running to the

vehicle—they were wearing dark-colored hoodies and at least one had a mask

on. Both entered the dark car—one into the front passenger side and one into

the back passenger side.    She testified that the one that entered the front

passenger seat looked like he was carrying a case of beer or box of some sort.

      Detective Pat Henz testified that he arrived at the crime scene around

11:25 p.m. He took photos and located and collected a fired shell casing and

a fired bullet projectile; he was with one of the other detectives who collected




                                      10
the surveillance videotapes. He testified that he found no fingerprints of any

value.4 He returned to the scene a few months later to take additional photos.

      2. Other Evidence

      Detective Jose Hernandez testified that various tips led to Amanda Bivins

and her car, a black 1998 four-door Oldsmobile Cutlass, and to the three men

who were arrested:    Stevenson, Darrell “Boo” Bell, and Julian Hayley.      He

testified that Stevenson was five feet, seven inches and 150 pounds; Hayley

was five feet, nine inches and 140–150 pounds; and Bell was five feet, ten

inches and 160 pounds.

      Bivins testified that in 2005, she used crack cocaine and would “basically

rent [to Bell her] car in exchange for the drugs.” She knew Hayley, Stevenson,

and Lloyd “Twin” Meredith through Bell—all three lived near Bell—and she took

drugs with Meredith. On April 13, 2005, when it was getting dark, she and

Bell went to a house on Bandy Avenue; Bell drove her car. She waited in the

car while Bell went inside. He emerged with Stevenson and Hayley—they were

all wearing black—and Bell got back into the driver’s seat.         Hayley and




      4
       … He testified on cross-examination that he did not collect the Pepsi
bottle that had spilled onto the floor, or the paper towels nearby, or any shoe
imprints, and that he did not fingerprint the Pepsi bottle.

                                      11
Stevenson climbed into the back seat; Bell tossed a black handgun into Bivins’s

lap and said, “Here, hold this.”

      Bivins testified that she asked whether the gun was loaded and

Stevenson told her that the gun had a bullet in the chamber. When she asked

if anyone was going to get shot, he told her no—it was “just in case.” She

testified that she knew they planned to rob a store, but she did not know which

one—she stayed at Meredith’s house and they took her car. Her concern at the

time was that they were “probably fixing to get money and that [she] would be

able to get high.”

      Bivins testified that Bell returned her car around thirty minutes later and

that it was followed by a light-colored Lincoln Town Car. A cash register till

was in the front seat of her car and a black sweat shirt was in the back seat.

Bell gave her $20 and then left in the Lincoln.      Bivins pulled her car into

Meredith’s driveway, and Meredith, with gloves on, got the cash register till,

a sweat shirt, and a ski mask out of her car and placed them in the trash. Then

Bivins went driving around to look for Bell because she wanted more money or

drugs, but she did not find him that night.

      Instead, Bivins saw Stevenson in front of the house on Bandy Avenue, by

the Lincoln or in the Lincoln, a couple of hours later and asked him where they

had gone. He told her, “Terry’s Food Mart on Hemphill.” When she asked if

                                       12
anyone had been shot, he told her that he shot at somebody “to scare them,

but [he] didn’t shoot anybody.” The next day, she saw on television a report

that Terry’s Food Mart had been robbed and that a man had been murdered.

        Five days later, the police pulled over her car—Shawntee Abbs and two

others were with her. Bivins identified Bell, Stevenson, and Hayley in photo

lineups. Bell wore his hair in braids at the time. Bivins testified that the police

who interviewed her brought up Bell’s, Hayley’s, and Stevenson’s names and

“knew quite a bit” about what had happened. She gave consent to search her

vehicle, even though she knew they would find illegal narcotics in it, and she

gave a statement. She testified that she received an immunity agreement but

had been willing to testify without it. Defense counsel entered the immunity

agreement in evidence.

        Bivins testified that she watched the surveillance videotape from Terry’s

Food Mart and that she recognized Bell. He went to the beer cooler and “[i]t

showed him walking off the camera and then it showed him walking back up

to the counter and getting some money that was just laying on the counter by

itself.” She could not say with certainty who the other people in the video

were.

        Bivins testified that she subsequently acquired criminal charges in New

Mexico, where she had moved in June 2005 to try to become drug-free, after

                                        13
being beaten up after talking to the police in April 2005. She had been off

drugs for a little over a year by the time she testified.

      Abbs testified only after she was located, arrested, and brought to court.

She identified the individual in State’s Exhibit 23 as Bell, the individual in

State’s Exhibit 24 as Stevenson—someone who lived in her neighborhood—and

the individual in State’s Exhibit 25 as Hayley. Abbs claimed that she did not

recall talking to a female detective on April 18, 2005, and that she did not

recall making her statement, although she acknowledged that the signature and

handwriting on State’s Exhibit 44 did “look like [her] handwriting.”

      Abbs was a very hostile witness, complaining at one point, “I don’t care

about this because y’all putting me in some stuff I ain’t got nothing to do with.

I ain’t the one that went with them to rob that damn store.”                 She

acknowledged that she had identified and initialed her identification of

Stevenson, Bell, and Hayley in photo lineups, but she stated that all she had

heard were rumors about the robbery. 5       The trial court included a limiting

instruction on impeachment in the jury charge, and it gave a limiting instruction

with regard to the following questioning:



      5
      … Abbs testified that she had a bad memory because she had seizures
and “was in a coma like three months ago” and almost died. She testified that
when she “came out of it,” she did not remember her social security number
and barely remembered some family members.

                                       14
[State’s counsel]: Ms. Abbs, do you recall hearing from: I heard
T.T. say something like do you remember when I busted a cap at
that—

[Defense counsel]: . . . My objection is this should only go as to
impeachment unless the witness clearly remembers.

      ....

The Court: Yeah. The statement that’s being made now is just for
impeachment purposes only. Not for the truth or the probative
value of it.

      ....

[State’s counsel]: Ms. Abbs, do you recall hearing an individual
you labeled in the statement as T.T., the same person you pointed
out here in the courtroom today, say something like, [“]You
remember when I busted at that,[“] and you used—you put the N
word out in quotes?

[Abbs]: I remember hearing something like that. I don’t remember
whose mouth it came out of. Because there was a lot of rumors
coming and going around the hood at the time. . . . I don’t
remember, but they asked me to write something down, you know
what I’m saying? But I don’t remember what—what . . . . Yeah,
this might be my hand printing on this paper[,] . . . but I don’t
remember saying that stuff.
      You got evidence, y’all said I talked to that lady over there on
Belknap . . . [w]ell, let her sit in here tell you if y’all got any
evidence . . . .

[State’s counsel]: Detective . . . Waters and Detective Carroll are
the next two witnesses. . . .

[Abbs]: That’s cool.

[State’s counsel]: Now, that’s your handwriting, correct? Yes or
no?

                                 15
      [Abbs]: Do I have to answer this, Judge?

      The Court: You told him that’s your handwriting, correct?

      [Abbs]: Yeah. And I told him yeah. Why he keep asking me that?
      He getting on my nerves. He’s fixing to make me mad. You know
      what I’m saying? I sure hate to start cussing and acting a fool. I
      don’t know.

      The Court: You’re not going to start cussing and acting a fool.

      Detective Michael Carroll testified that he and Detective Sara Jane Waters

interviewed Abbs on April 18, 2005, and that Abbs was extremely reluctant to

talk with them.     He stated, “It was obvious that she really—she knew

information but really didn’t want to give the information to us for fear that she

may be injured or hurt.” Detective Waters also testified that Abbs was very

reluctant and that they did not force her to make her statement. Detective

Waters read Abbs’s redacted statement in evidence, which in pertinent part

stated:

           For about the past year I’ve been friends with a guy I know
      as Boo. I don’t know his real name. He stays somewhere on
      Savage [Drive] with his grandmother. Boo hangs out a lot on
      Bandy [Avenue] at Julian’s house . . . . Boo has been dating
      Amanda[,] a white girl I know.

              On Tuesday, April 12th, 2005, at about 9:30 or 10 that
      night[,] me, Boo, M’Kail, my sister Marian, and my big brother
      Bruce were all at my house on Glasgow [Road]. When he finally
      left, it was two in the morning. He was on foot. I didn’t know
      where he went.



                                       16
           The next time I saw Boo was on Thursday about noon . . . .
     Boo was across the street and I called him over. I gave him 50
     cents and asked him to buy a cigar for me. . . .

            By then we were at Julian’s house and we went inside.
     Julian and [Stevenson] were already there and so was my little
     sister Marian and some mixed-race boy that I don’t know his name.
     Julian was falling asleep on the sofa. [Stevenson] w[as] talking
     about what they did. I heard [Stevenson] say something like[, “]do
     you remember when I busted at that n[*****].[“] [Stevenson] was
     talking about having a box of squares—cigarettes, and Marian
     asked him where he got the money for squares. He said he didn’t
     have no more money because he spent it on a gauge—a shotgun.

           She already knew where he had gotten the money because
     she heard him talking about the store he had robbed. We were
     only there for about 45 minutes when Amanda pulled up to pick us
     up. We got into her car, which is a black four door. We dropped
     him off on Savage [Drive] and he gave me $10 when he got out.
     He didn’t say what it was for. He just got out of the car without
     saying anything else to Amanda because . . . he knew she was
     mad at him.

          . . . Amanda pulled up about 30 minutes later. She showed
     me the newspaper article about the robbery and murder on
     Hemphill. I knew then that it was the store that Boo, [Stevenson],
     and Julian had robbed.

            . . . I didn’t see Boo again until today. When I got home at
     2:30 this afternoon he was there. Saw that he had a whole bunch
     of 10s and 20s and stuff. He had maybe a couple of a hundred
     dollar bills, too, but I didn’t get a real good look.

           I don’t know . . . [Stevenson’s] real name or Boo’s, but I did
     pick out pictures of them in the photo spreads I was shown.

In handwriting, Abbs’s redacted statement contained the following: “There’s

a number . . . and then it says ‘my phone’ and the number sign. And then it

                                     17
says: T.T., we were talking about the robbed store and got the money. T.T.

told me that he had shot at somebody or shot somebody when he said [‘]I bust

at that n[******].[‘]” Detective Waters testified that she watched Abbs write

this on her statement.

      Meredith testified that he and Bivins used to do cocaine together. He

testified that Terry’s Food Mart was only a seven-to-ten minute trip from his

neighborhood—he lived on Savage Drive—and that Stevenson, Bell, and Hayley

were “some kids from the neighborhood.” He testified that Bell wore his hair

in braids, that Stevenson was the shortest of the three “kids,” and that Bivins

had a black, small to mid-sized car.

      On April 13, 2005, Bivins and Bell arrived at Meredith’s house a little

before dark; Bivins remained there for around an hour after Bell left with her

car. When Bell returned in Bivins’s car, Hayley was with him; another vehicle,

a light-colored Lincoln, was behind them, with “Ant” driving and Stevenson in

the back seat. Meredith took an empty cash register till that was handed to

him and put it in his trash can. He testified that Bell and Hayley were “an

adrenaline flow type” hyper; Bell gave Bivins $20, and then Bell, Hayley, and

Stevenson left in the Lincoln. Meredith admitted to his criminal history.

      Dr. Mark Krause, Tarrant County Deputy Chief Medical Examiner, testified

that he performed the autopsy on Karim and ruled that the manner of death

                                       18
was a homicide. The cause of death was laceration of Karim’s heart due to a

gunshot wound to the chest. He testified that if the bullet “had been about an

inch and a half further forward it would have missed him completely.”

      The State entered in evidence a pro se motion filed by Stevenson while

he was in jail awaiting trial, complaining of excessive bail and requesting a

reduced amount of bond. The motion states in pertinent part:

      Comes now Tarrence L. Stevenson, No. 0653620, Defendant in
      the above entitled and numbered cause and moves the Court to—to
      grant a writ of habeas corpus and . . . in support of such motion
      shows. Your Honor, I am legally restrained, confined in the county
      jail . . . .

             Your Honor, I am charged with the offense of murder (cap),
      by Indictment No. 0974892, pending in . . . Court of Tarrant
      County, Texas. . . . And Applicant was arrested on April 14,
      2005. Your Honor, I have been in custody for failure to enter into
      bail on said charge in the amount of 250,000. . . .

            ....

             Your Honor, I am 17, about to turn 18 on the 13th of
      September and I am a life-long resident of Fort Worth, Texas. And
      I have—have currently enrolled in GED classes since I’ve been
      incarcerated. I have a very well Christian oriented family willing to
      . . . go the extra mile to get me in the right direction, sir . . . .

            . . . Your Honor, my mother is also a hardworking mother of
      three children who does her best to assure of my well being. I’m
      her youngest child and I know I’ve made my family ashamed of my
      fatal mistake, Your Honor. Sir . . . since I’ve been in jail, Your
      Honor, I have really come to understand my serious mistake in life,
      Your Honor . . . .



                                       19
             Your Honor, I’m not a bad human being. I made a bad
      decision back in April and I am sorry for [the] wrong I’m accused
      of, sir.

           . . . Respectfully submitted this 24th day of August, 2005.
      Signed Tarrence Stevenson.

D. Sufficiency Analysis

      Stevenson complains that there is no direct evidence that he was involved

in the robbery and Karim’s shooting, stating that there were “[n]o fingerprints,

no clear images of the participants, no gun recovered, no money or till

recovered, no correct identification of the involved vehicle, no clothing, no co-

defendant testimony[,] and so forth.”       He argues that the only evidence

connecting him to the robbery is a motion for habeas corpus relief that he did

not adopt, Abbs’s redacted statement, and the testimony of Bivins, a confessed

drug user.

      1. Legal Sufficiency

      Notwithstanding the absence of fingerprints, the gun, the till, the

clothing, and co-defendant testimony, viewing the above evidence in the light

most favorable to the prosecution, we conclude that a rational trier of fact

could have found the essential elements of felony murder beyond a reasonable

doubt such that the evidence is legally sufficient. See Jackson, 443 U.S. at

319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778. To convict Stevenson



                                       20
of felony murder, the jury had to conclude beyond a reasonable doubt that,

either acting alone or as a party or conspirator, and in the course of committing

or attempting to commit a robbery, Stevenson shot a firearm at or in the

direction of Karim, “an act clearly dangerous to human life” that caused Karim’s

death. See Tex. Penal Code Ann. § 19.02(b)(3).

      Brenda and Patrick Kilpatrick testified that, during the course of a robbery

of Terry’s Food Mart, Karim was shot by the shortest individual involved in the

robbery. Several people testified at trial that Stevenson was the shortest of

Stevenson, Bell, and Hayley. Bivins testified that Stevenson told her the gun

was loaded before he left with Bell and Hayley, and that when she asked

Stevenson where they had gone, he told her, “Terry’s Food Mart on Hemphill,”

and told her that he shot at somebody “to scare them, but [he] didn’t shoot

anybody.” The medical examiner testified that the bullet would have missed

Karim if it “had been about an inch and a half further forward,” and that the

gunshot wound to the chest killed him. We overrule this portion of Stevenson’s

first issue.

      2. Factual Sufficiency

      Viewing all the evidence in a neutral light, we also conclude that the

evidence is factually sufficient.    With regard to the lack of fingerprints,

Detective Henz, who testified that he had a master’s peace officer certificate

                                       21
and that he taught crime scene courses to academy recruits, gave extensive

testimony about what a fingerprint of “value” would consist of, testified that

he tested for fingerprints “any spot that we would have been made aware of

that somebody came in and touched,” and explained to the jury that he did not

find any fingerprints of any value. The fact that the police were unable to

recover the till was explained by Meredith, who testified that he placed it in his

garbage can. The absence of the money—the purpose of the robbery—and the

absence of the gun—the instrument of death according to the medical

examiner’s testimony—make no difference in the analysis when circumstantial

evidence, by itself, can be enough to support the jury’s verdict. See Kutzner,

994 S.W.2d at 184.       Patrick and Brenda both testified that the gunman

demanded money, received it, and shot Karim.

      In addition to the testimony above, the jury was made aware of Patrick

and Brenda’s criminal histories, but they also considered testimony and audio-

visual evidence presented by Fredericks, the forensic video analysis expert, that

corroborated Patrick’s and Brenda’s testimonies about the events that night at

Terry’s Food Mart.

      The jury was also made aware of Bivins’s immunity agreement and

history of drug abuse, but the testimony she gave about renting her black four-

door car in exchange for drugs was corroborated with testimony by Rojas who

                                       22
saw a black four-door car parked at the Shell station next door to Terry’s Food

Mart on the night in question and also saw a man with a black hood run toward

the passenger side of the vehicle and get inside.       Bivins’s testimony also

matched up with Pyles’s testimony about seeing a parked, dark-colored, four-

door car at the Shell station that night and about nearly hitting two men in dark

hoodies who were running to the vehicle.       The jury could have reasonably

disregarded Pyles’s and Rojas’s identifications of the vehicle as other than an

Oldsmobile Cutlass, given that they saw the vehicle at night under stressful

circumstances—Rojas heard the gun that killed Karim go off, and Pyles nearly

hit the robbers with her car. The jury also heard Bivins testify that she would

have been willing to testify without an immunity agreement, and we must give

due deference to the jury’s determinations concerning the weight and credibility

of such testimony. See Johnson, 23 S.W.3d at 9.

      Even without Abbs’s written statement, in which she stated that she

heard Stevenson talk about “bust[ing] at” somebody and talking about the store

he had robbed, which was read in evidence by the officer who took the

statement, and the statements in Stevenson’s pro se motion about his “fatal

mistake,” his “bad decision back in April,” and how he was sorry for the wrong

he was accused of, we conclude that the evidence was not so weak that the

jury’s determination is clearly wrong and manifestly unjust, or that conflicting

                                       23
evidence so greatly outweighs the evidence supporting the conviction that its

determination is manifestly unjust. See Lancon, 253 S.W.3d at 704; Watson,

204 S.W.3d at 414–15, 417. We overrule the remainder of Stevenson’s first

issue.

                             IV. Evidentiary Objections

         In his remaining three issues, Stevenson complains that the trial court

erred when it admitted the following evidence:           “a document . . . which

contained statements against interest but [was] in fact a legal pleading”; “out

of court statements of a reluctant witness”; and “the testimony of an expert

witness over a Daubert objection.”

A. Standard of Review

         An appellate court may not disturb a trial court’s evidentiary ruling absent

an abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim.

App. 2007). In other words, as long as the trial court’s decision was within the

zone of reasonable disagreement and was correct under any theory of law

applicable to the case, it must be upheld. Id. (citing Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)). This is so because

trial courts are usually in the best position to make the call on whether certain

evidence should be admitted or excluded. Id.




                                          24
B. Motion for Bail Reduction

      Stevenson complains that the trial court erred by admitting a pro se

motion for writ of habeas corpus for bail reduction that he filed prior to trial,

which he signed but which was allegedly authored by another inmate. The

pertinent contents of the motion are set out in our recitation above, and the trial

court stated that it was admitting the motion “based upon 803.24, statement

against interest.”

      Stevenson complains that the motion should not have been admitted

under rule 803(24) because it was not corroborated and because the trial court

failed to address the motion’s trustworthiness. Stevenson is correct that the

statements should not have been admitted under rule 803(24)—the underlying

premise of that rule is that the statements were made by a third person, not by

the accused.         See Spivey v. State, 748 S.W.2d 18, 19–20 (Tex.

App.—Houston [1st Dist.] 1988, no pet.).

      Nonetheless, the trial court did not abuse its discretion by admitting the

motion because the statements in the motion were admissible under rule

801(e)(2)   as   statements    by   a   party-opponent.     See   Tex.   R.   Evid.

801(e)(2)(A)–(B) (reciting that a statement is not hearsay if the statement is

offered against a party and is the party’s own statement in either an individual

or representative capacity or a statement of which the party has manifested an

                                        25
adoption or belief in its truth); McNair v. State, 75 S.W.3d 69, 72 (Tex.

App.—San Antonio 2002, no pet.) (“Rule 801(e)(2)(A) plainly and unequivocally

states that a criminal defendant’s own statements, when being offered against

him, are not hearsay.”); see also Moore v. State, 999 S.W.2d 385, 401 (Tex.

Crim. App. 1999) (“By signing Detective Holguin’s transcription of the oral

statement, appellant manifested an adoption or belief in its truth.”), cert.

denied, 530 U.S. 1216 (2000); Trevino v. State, 991 S.W.2d 849, 853 (Tex.

Crim. App. 1999) (disavowing any precedent indicating that the statement of

a party, when being offered against him, is hearsay).      Because Stevenson

signed the motion, thereby adopting the statements contained therein as his

own, the statements were admissible against him as admissions by a party-

opponent. Therefore, on this basis, the trial court did not abuse its discretion

by admitting the motion in evidence. See Winegarner, 235 S.W.3d at 790

(stating that we must uphold the trial court’s decision if it was correct under

any theory of law applicable to the case).

      We must next consider Stevenson’s argument that the motion was

inadmissible under Simmons v. United States. 390 U.S. 377, 88 S. Ct. 967

(1968). Simmons involved testimony given by a defendant in support of his

motion to suppress—he testified that he owned a suitcase containing

incriminating materials in order to show that he had standing to bring his

                                      26
motion.   Id. at 390–91, 88 S. Ct. at 974–75.          That testimony was later

admitted at his trial and was instrumental in convicting him. Id. at 389, 88 S.

Ct. at 974. The Supreme Court reversed the conviction, holding, “[W]hen a

defendant testifies in support of a motion to suppress evidence on Fourth

Amendment grounds, his testimony may not thereafter be admitted against him

at trial on the issue of guilt unless he makes no objection.” Id. at 394, 88 S.

Ct. at 976.

      One of our sister courts has extended Simmons to hold that “a defendant

may testify in a bail hearing regarding his ability to make bail without subjecting

himself to cross-examination on the nature and circumstances of the offense

with which he is charged.”      Ex Parte Homan, 963 S.W.2d 543, 544 (Tex.

App.—Tyler 1996), pet. dism’d, improvidently granted, 962 S.W.2d 599 (Tex.

Crim. App. 1998); see also Avila v. State, 856 S.W.2d 260, 261 (Tex.

App.—El Paso 1993, pet. ref’d) (citing Simmons for the proposition that a

person may not be required to surrender one constitutional right to assert

another with regard to testifying about the voluntariness of her statement

outside the jury’s presence).    But see United States v. Ingraham, 832 F.2d

229, 237 (1st Cir. 1987) (describing bail hearings as “a fundamentally different

breed of cat” from suppression hearings in that the accused’s bail rights are not

so contingent on his ability to speak without fear of the future use of his

                                        27
testimony that he must be granted a blanket immunity from use of all

statements made during an initial hearing, particularly as the information may

in large part be concerned with the accused’s employment record, family

status, ties to the community, and information about the charged crime can

usually be obtained from sources other than the accused’s own testimony),

cert. denied, 486 U.S. 1009 (1988); United States v. Dohm, 618 F.2d 1169,

1173 (5th Cir. 1980) (en banc) (“Testimony required at a fourth amendment

suppression hearing differs in nature from that required at a bail bond

hearing.”).

      Here, Stevenson voluntarily submitted a motion for reduction of bond,

upon which no hearing was held. Because there was no hearing on the motion,

Stevenson was not subjected to cross-examination on the offense’s nature and

circumstances. Cf. Homan, 963 S.W.2d at 544. And based on the rules for

fixing the bail amount, Stevenson was not required to include any of the

controversial statements in order to request a reduced bail amount. 6 See Tex.

Code Crim. Proc. Ann. art. 17.15 (Vernon 2008) (setting out the rules for fixing

the bail amount, including the nature of the offense and its circumstances, the



      6
       … Stevenson’s trial counsel acknowledged that the motion was “fairly
close to . . . one that a lawyer would draft.” The trial court agreed, stating,
“No doubt about it. I mean, he just put more in it than he should have put i[n]
i[t].”

                                      28
ability to make bail, and the future safety of the community). Here, although

Stevenson may have believed these statements would help him get a reduced

bond, he was not actually faced with being forced to choose between basic

constitutional rights (that is, between suppression and self-incrimination, or

between reduced bail and self-incrimination).          Under these facts and

circumstances, Simmons and its underlying reasoning are inapplicable. We

overrule Stevenson’s second issue.

      C. Reluctant Witness

      In his third issue, Stevenson argues that the trial court erred by admitting

Abbs’s statement because Abbs did not adopt the language of her statement,

its admission was contrary to the trial court’s impeachment instruction, and it

contained hearsay that the defense was not able to cross-examine.

      Preservation of error is a systemic requirement that this court should

review on its own motion. Archie v. State, 221 S.W.3d 695, 698 (Tex. Crim.

App. 2007); Jones v. State, 942 S.W.2d 1, 2 n.1 (Tex. Crim. App. 1997).

Among other methods to preserve a complaint for our review, a party must

have presented to the trial court a timely objection, which the trial court then

ruled on. See Tex. R. App. P. 33.1(a)(1)–(2); Mendez v. State, 138 S.W.3d

334, 341 (Tex. Crim. App. 2004); Mosley v. State, 983 S.W.2d 249, 265

(Tex. Crim. App. 1998) (op. on reh’g), cert. denied, 526 U.S. 1070 (1999).

                                       29
And to preserve error, a party must continue to object each time the

objectionable evidence is offered. Fuentes v. State, 991 S.W.2d 267, 273

(Tex. Crim. App.), cert. denied, 528 U.S. 1026 (1999); Ethington v. State, 819

S.W.2d 854, 858–59 (Tex. Crim. App. 1991).          A trial court’s erroneous

admission of evidence will not require reversal when other such evidence was

received without objection, either before or after the complained-of ruling.

Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Johnson v.

State, 803 S.W.2d 272, 291 (Tex. Crim. App. 1990), cert. denied, 501 U.S.

1259 (1991), overruled on other grounds by Heitman v. State, 815 S.W.2d

681 (Tex. Crim. App. 1991).

      The trial court admitted State’s exhibits 44 and 63 (a copy of Abbs’s

statement and the original) over Stevenson’s objections that they constituted

hearsay and violated the Confrontation Clause under Crawford v. Washington,

541 U.S. 36, 59, 124 S. Ct. 1354, 1368–69 (2004). After the trial court

overruled the objections, Stevenson requested a limiting instruction on

impeachment.    The trial court stated, “Yes.   And I’ll also include it in my




                                     30
charge.” 7   However, after Abbs’s testimony, the parties had the following

conversation about the statement outside the jury’s presence:

      The Court: All right. I have the statement, that is Exhibit 63,
      [defense counsel] has highlighted some statements attributed to
      someone other than his client and ask[s] that we take those
      statements out or black them out.

      ....

      [State’s counsel]: I have no problem with everything you’ve
      highlighted that’s typed.

      [Defense counsel]: All right.

      [State’s counsel]: The State’s problem is [the handwritten portion
      is] talking about your client . . . and we’d object because now
      it’s—on [the] grounds that it’s too late to begin with. But we’re
      being nice and—and not protesting for that. But we would—that’s
      part of your client, she’s talking specifically about Boo and T.T. in
      combination . . .

      [Defense counsel]: . . . . My purpose was to identify those
      sections in which they are statements attributed to Boo or Julian,
      which would—even if this witness had adopted them, would be
      hearsay. . . . Just to be more specific, the handwritten portion over
      which we now, I think, dispute says Boo-N-T-T, which I’m going to
      interpret to mean Boo and T.T., were talking about how they
      robbed the store and got the money, period.

      ....




      7
       … The trial court included an instruction on impeachment in the jury
charge. Neither party objected to its inclusion. Stevenson argued that
instruction applied to Abbs’s statement during his closing argument.

                                       31
      The Court: All right. Well, I’ve already admitted 63 and 44. Now,
      if [the] State doesn’t have any problem with redacting the blue
      [typewritten] that you’ve highlighted, then that’s fine. . . . The
      handwritten part talks about both Boo and T.T. so I don’t know
      how I can take that out because I can’t distinguish which one
      we’re talking about. She’s saying both of them.

The parties agreed to redact “Boo N” from the handwritten portion of the

statement.

      [State’s counsel]: We’re going to ask that it be—63-B at this point
      be admitted for all purposes with the caveat that we’re going to
      clean it up or the jury never gets to hold on to it . . . until we’ve
      whited everything out.

      The Court: All right . . . . Publish it by reading?

      [State’s counsel]: Yes. . . . Anything that’s in purple doesn’t get
      read.

      [Defense counsel]:     [Detective Waters] will read, excepting the
      purple stuff.

      [State’s counsel]: And that’s what I’m going to go tell her while
      you have [Detective] Carroll on the stand.

      The Court: All right. Who’s next?

      [Defense counsel]: That’s fair.

      The Court: That’s fair. All right. Let’s get them in.

[Emphasis added.]         Subsequently, without objection, Detective Waters

published the redacted version of Abbs’s statement, State’s Exhibit 63-B, by

reading it to the jury.



                                        32
      It is apparent from the record that the jury only received State’s Exhibit

63-B.8 Because Stevenson failed to object to the admission and publication of

the redacted statement for all purposes, we conclude that the errors now

complained of were not preserved. See Tex. R. App. P. 33.1(a); Leday, 983

S.W.2d at 718; Johnson, 803 S.W.2d at 291; see also Curry v. State, 910

S.W.2d 490, 496 & n.2 (Tex. Crim. App. 1995) (stating that constitutional

errors can be forfeited). We overrule Stevenson’s third issue.

D. Daubert Objection

      In his final issue, Stevenson complains that the trial court erred by

allowing Fredericks, the State’s forensic video analysis expert, to testify as an

expert under rule 702 of the Texas Rules of Evidence.

      Rule 702 states,

      If scientific, technical, or other specialized knowledge will assist the
      trier of fact to understand the evidence or to determine a fact in
      issue, a witness qualified as an expert by knowledge, skill,



      8
      … After beginning deliberations, the jury requested both Abbs’s and
Bivens’s written statements, and the parties held the following conversation:

      The Court: The note says, [“]We would like to review the written
      statement of Ms. Abbs and Ms. Bivens the night they were brought
      down to the station . . . .

      [Defense counsel]: That’s State’s Exhibit 63-B, which is the
      whited out version of Shawntee Abbs. That’s fine, Judge.


                                        33
      experience, training, or education may testify thereto in the form
      of an opinion or otherwise.

Tex. R. Evid. 702. Thus, before admitting expert testimony under rule 702, the

trial court must be satisfied that three conditions are met: (1) the witness

qualifies as an expert by reason of his knowledge, skill, experience, training, or

education; (2) the subject matter of the testimony is an appropriate one for

expert testimony; and (3) admitting the expert testimony will actually assist the

factfinder in deciding the case. Rodgers v. State, 205 S.W.3d 525, 527 (Tex.

Crim. App. 2006).

      Furthermore, a trial court need not exclude expert testimony simply

because the subject matter is within the comprehension of the average jury.

See id. & n.7. That is, if the witness has some special knowledge or additional

insight into the field that would be helpful, then the expert can assist the trier

of fact to understand the evidence or to determine a fact in issue. Id. at 527.

An expert may add precision and depth to the ability of the trier of fact to reach

conclusions about subjects that lie well within common experience.              Id.

Because the possible spectrum of education, skill, and training is so wide, a trial

court has great discretion in determining whether a witness possesses sufficient

qualifications to assist the jury as an expert on a specific topic in a particular

case. Id. at 527–28.



                                        34
      The court of criminal appeals has set out the following criteria to consider

in assessing whether a trial court has abused its discretion in ruling on an

expert’s qualifications:

      First, is the field of expertise complex? The degree of education,
      training, or experience that a witness should have before he can
      qualify as an expert is directly related to the complexity of the field
      about which he proposes to testify. If the expert evidence is close
      to the jury’s common understanding, the witness’s qualifications
      are less important than when the evidence is well outside the jury’s
      own experience. . . . Second, how conclusive is the expert’s
      opinion? The more conclusive the expert’s opinion, the more
      important is his degree of expertise. . . . And third, how central is
      the area of expertise to the resolution of the lawsuit? The more
      dispositive it is of the disputed issues, the more important the
      expert’s qualifications are.

Id. at 528 (internal citations omitted).

      During the Daubert hearing, Fredericks testified that he had a degree in

broadcast telecommunications, that he was an instructor at the FBI National

Academy for forensic video analysis, and that for over twenty years, he had

been a forensic video analyst doing forensic video analysis work worldwide.

He   defined   “forensic   video   analysis”   as   “the   scientific   examination,

comparison[,] and evaluation of video in legal matters.” He also described two

of the FBI’s scientific working groups in the field of forensic video analysis, the

Scientific Working Group on Imaging Technology and the Scientific Working

Group on Digital Evidence, and explained that the purpose of such working



                                        35
groups was to establish standards for the processing of analog and digital video

evidence. He testified that he had published articles regarding forensic video

analysis that were subject to peer review, that he had testified as an expert in

forensic video analysis in the United States and Canada, and that he had co-

authored “Best Practices for the Acquisition of Digital Multimedia Evidence,” the

standard for the acquisition of digital video evidence. He testified that “any

analyst with the appropriate training could take [his] written report [in this case]

and all of the data and reproduce [his] work exactly from them.”

      Fredericks aligned the material on the surveillance videotapes with the

three different 911 audio sources and explained that in forensic video analysis

parlance, an “artifact” was “anything that is produced by the video signal that

. . . was not . . . part of the camera’s view[;] . . . elements of the image,

because of the tape medium, where there’ll be flashes of light . . . [or] dark

areas that need to be processed” to determine whether they were errors in the

video signal or actually an object there in the scene.

      Defense counsel asked, with regard to Fredericks’s expertise in observing

video, “[I]s there any tool, forensic tool, that you used to form that opinion

[that three males were involved in the robbery, one had a handgun, and one

removed bills from the cash drawer] other than fixing the image, making it still

or playing it over and over again?” Fredericks responded,

                                        36
      Yes. . . . I’m able to track the motion of [the gunman’s] hand. For
      instance, in—in this particular case my experience . . . is that when
      I explain to somebody here is the person entering. The person I’m
      showing goes, [“]Wait, I don’t see the person entering.[“] So we’ll
      very carefully say this area of darkness is a body entering the
      image. And then I can track it and explain what image—for the
      record, with the number, what image it starts on, where the person
      goes to. And then I say, [“S]ee here is the gun coming out,[“] the
      person I’m describing to goes, [“]I don’t see a gun.[“] So then I
      circle it, I point it out, and then I track it. And they go[,”N]ow I see
      the gun.[“] . . . .

               My experience is after examining tens of thousands of
      videotapes, providing this kind of evidence as a forensic video
      expert throughout North America in over 60 cases like this, the
      layperson does not see what I see until I explain it. You—to show
      it still image and to say—to step back and let a layperson assess
      what is on the image, they won’t see five percent of what I see
      . . . . [M]y experience is that a—a layperson cannot appreciate
      what they are looking at unless it’s fully and clearly explained to
      them.

      Fredericks acknowledged that the tape quality was a poor, black-and-

white video and explained that he determined what was money by going back

on the videotape several hours and watching multiple transactions—“[s]o with

multiple transactions in typical convenience store setting, . . . it was my opinion

that . . . that was money.” He testified that he sends a number of his cases for

peer review but that he did not recall whether he sent this particular case. He

acknowledged that one particular event—the conclusion that someone was

taking money from a cash drawer—would be a common sense observation and

that he was not aware of any publication that described the process of looking

                                        37
at video, stopping the images, and forming such opinions. However, he also

pointed out that the value of the opinion was in figuring out “what’s in the

box,” i.e., how one would determine that the box contained money—“[t]hat

would be something that I could assist the trier of fact to answer if—if that

question is—arises.” He testified that photographic and video comparison is the

examination and comparison of a known object to a questioned object—in this

case, “is that box that was seen on video, that was removed from the counter,

the same box that was photographed on April of 2005? And in its position, its

size, location, shape, and other features, in fact, I formed the opinion that that

is the same box.”

      In the first portion of his complaint, Stevenson argues that Fredericks

should not have been allowed to testify as an expert under rule 702 because

“there was no underlying theory to support, nor novel scientific methodologies

to support the findings”—that is, he complains that what Fredericks testified to

“was mechanical manipulation of videos and tapes.” However, this argument

does not comport with the ones made at the Daubert hearing, in which

Stevenson stated, “Just so I’m—I’m clear on what I’m complaining about and

I’m not complaining about. I’m not complaining about the—the display of the

videos, the three different views that are the result of his work and his

processing, filtering, analyzing, and so forth. . . . I have no quarrel he’s an

                                       38
expert in many areas of video analysis.”          [Emphasis added.] See, e.g.,

Heidelberg v. State, 144 S.W.3d 535, 537 (Tex. Crim. App. 2004) (stating that

it is well settled that the legal basis of a complaint raised on appeal cannot vary

from that raised at trial). Therefore, we overrule this portion of Stevenson’s

fourth issue.

      Despite the several objections Stevenson made to Fredericks’s testimony

during the Daubert hearing and at trial, his only specific complaint on appeal,

set out “[a]s an example for the proposition that Fredericks is not an expert,”

is that State’s Exhibit 64, Fredericks’s report of his investigation, forces a

conclusion that it is not an expert opinion:

      Page 000515 of the report shows a “Measurement Standard”
      which Fredericks placed in the store in an appropriate location after
      the fact and then superimposed the actual video over it to show
      the relative height of one of the robbers against the “Measurement
      Standard” as shown in the stills on page 000516. Fredericks[‘s]
      conclusion was that Male No. 1 is taller than 5‘8‘’. This conclusion
      is not an expert opinion, nor the results of a test of the underlying
      theory, nor the results of the novel scientific methodology used.
      It was merely an observation which could have been made by a lay
      person with some fancy equipment.

      However, Fredericks testified during the Daubert hearing that “part of the

subdiscipline of forensic video analysis includes height comparison of individuals

. . . [by] going back to the scene, calibrating the camera, and taking a height

standard, and placing it back where one of the individuals was standing,” so



                                        39
that he could provide some information about height. He testified that he did

not make estimates of the individuals’ heights, i.e., how tall they were, but

instead made observations about their comparative heights.

      Having reviewed the videotape evidence, with regard to this complaint,

we conclude that the trial court did not abuse its discretion by allowing

Fredericks to testify as an expert because it could have concluded, based on

Fredericks’s testimony at the Daubert hearing, that Fredericks was an expert in

forensic video analysis, that the subject matter was appropriate for his

testimony, and that admitting Fredericks’s testimony would actually assist the

jury in deciding the case. See Rodgers, 205 S.W.3d at 527. That is, the trial

court could have reasonably concluded that even though the jurors could see

for themselves the sequence of events at Terry’s Food Mart on the videotape,

Fredericks’s testimony could help clarify what they were seeing on the poor-

quality black-and-white video, particularly with regard the comparison of the

individuals’ heights. See, e.g., Lerma v. State, No. 14-98-00977-CV, 2000 WL

123768, at *5 (Tex. App.—Houston [14th Dist.] Feb. 3, 2000, pet. ref’d) (not

designated for publication) (holding that it was not ineffective assistance of

counsel to fail to object to qualifications of expert witness who testified

concerning measurements made at the murder scene and his extrapolations of

the height of one of the assailants from those measurements); cf. Gonzales v.

                                      40
State, No. 02-04-00466-CR, 2006 WL 820387, at *2–4 (Tex. App.—Fort

Worth Mar. 30, 2006, pet. ref’d) (mem. op., not designated for publication)

(finding harmless error when the trial court allowed expert to narrate videotape

for the jury because “there is no evidence that Fredericks had any special

training in a field that qualified him to offer an expert opinion as to what

appellant’s intent was in gesturing to the gunman . . . [and] the jury did not

need [his] assistance to determine appellant’s intent”).          We overrule

Stevenson’s final issue.

                                V. Conclusion

      Having overruled all of Stevenson’s issues, we affirm the trial court’s

judgment.




                                                 BOB MCCOY
                                                 JUSTICE

PANEL: LIVINGSTON, MCCOY, and MEIER, JJ.

PUBLISH

DELIVERED: January 14, 2010




                                      41
