                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-13-00233-CR



         HAROLD L. GRAVES, JR., Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 297th District Court
                Tarrant County, Texas
              Trial Court No. 1338568R




       Before Morriss, C.J., Carter and Moseley, JJ.
               Opinion by Justice Carter
                                              OPINION
        Harold L. Graves, Jr., was convicted by a jury of murder and tampering with physical

evidence, for which he received concurrent sentences of thirty-seven years’ and ten-years’

imprisonment, respectively. We affirm Graves’ murder conviction. Because the evidence is

legally insufficient to support the tampering with physical evidence conviction, we reverse that

judgment of conviction for tampering and enter a verdict of acquittal on the tampering offense

only.

I.      Background

        Graves was awakened by the sound of pounding on the front door of his Fort Worth1

home in the early morning hours of May 11, 2012. When Graves opened the door, he was

confronted by Eric Hollie, who apparently wanted to retrieve his cell phone from Dwanna

Conner, Graves’ live-in girlfriend. Conner had traded Hollie crack cocaine the previous day in

exchange for the cell phone, and Hollie wanted to undo the deal. Graves and Hollie engaged in a

heated argument for several minutes. At one point, Hollie attempted to forcibly enter the home,

but he was pushed back outside by Graves. After Hollie threatened “to come back and shoot up

the whole house,” he began to back away from the front door. At that point, Graves shot the

unarmed Hollie with a handgun.              Graves then went back inside, gathered the occupants,

including Conner, Connor’s friend, Samantha Iglesias, and Graves’ teenaged son, Trey Graves.


1
 Originally appealed to the Second Court of Appeals, this case was transferred to this Court by the Texas Supreme
Court pursuant to Section 73.001 of the Texas Government Code. See TEX. GOV’T CODE ANN. § 73.001 (West
2013). We are unaware of any conflict between precedent of the Second Court of Appeals and that of this Court on
any relevant issue. See TEX. R. APP. P. 41.3.


                                                       2
The four left the residence in Conner’s car and drove to the home of Graves’ cousin where they

spent the remainder of the night.

       At approximately 7:00 a.m. that same morning, a neighbor discovered Hollie’s lifeless

body lying in front of Graves’ home; the neighbor notified the police. Graves was ultimately

arrested for the shooting, but the handgun used in the shooting was never recovered. After a jury

trial, Graves was convicted of murder and of tampering with physical evidence. Graves raises

six points of error on appeal.

II.    Jury Charge Error

       In his first two points of error, Graves complains of the trial court’s refusal to instruct the

jury on the “presumption of reasonableness” and the lack of any “duty to retreat” in conjunction

with the court’s instructions on self-defense and pursuant to Section 9.32 of the Texas Penal

Code. See TEX. PENAL CODE ANN. § 9.32(b), (c) (West 2011). The State responds that the trial

court properly denied the requested instructions because the evidence showed that Hollie was

unarmed, and there was no evidence that Graves reasonably believed deadly force was needed to

protect himself, the occupants of his home, or his personal property.

       A.      Standard of Review

       We review claims of jury charge error under the two-pronged test set out in Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). We first determine whether

error exists. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we then

evaluate the harm caused by that error. Id. If there is no error, our analysis ends. Kirsch v.

State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

                                                 3
       The trial court must give a requested instruction on every defensive issue raised by the

evidence, regardless of the source of the evidence, the strength of the evidence, or the credibility

of the evidence. Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013); Juarez v.

State, 308 S.W.3d 398, 404–05 (Tex. Crim. App. 2010). A defense is raised by the evidence if

there is some evidence on each element of the defense that, if believed by the jury, would

support a rational inference that that element is true. Shaw v. State, 243 S.W.3d 647, 657–58

(Tex. Crim. App. 2007).

       B.      Analysis

       Under Texas law, a person may use deadly force if he or she reasonably believes such

force is immediately necessary to protect himself from the other person’s use of deadly force.

TEX. PENAL CODE ANN. § 9.32 (West 2011). When certain conditions are met, a defendant is

entitled to an instruction informing the jury that his action is presumed to be reasonable. A

person is presumed to have acted reasonably in the use of deadly force while protecting himself

or his family from an intruder if the intruder is attempting to enter the individual’s habitation or

attempting to commit certain other specific crimes. TEX. PENAL CODE ANN. § 9.32(b)(1)(A); Lee

v. State, 415 S.W.3d 915, 919 (Tex. App.—Texarkana 2013, pet. ref’d). When assessing the

reasonableness of a defendant’s belief that force was immediately necessary, the jury should be

instructed that it may not consider whether the defendant failed to retreat if the defendant (1) had

a right to be present at the location where the conduct occurred, (2) did not provoke the attack,

and (3) was not engaged in criminal activity at the time the deadly force was used. TEX. PENAL




                                                 4
CODE ANN. § 9.32(c), (d); see Morales v. State, 357 S.W.3d 1, 5 (Tex. Crim. App. 2011);

Whitney v. State, 396 S.W.3d 696, 703 (Tex. App.—Fort Worth 2013, pet. ref’d).

        Trey witnessed the encounter between Graves and Hollie from the darkened living room.

He testified that Hollie wanted to come inside the house to retrieve his cell phone, but Graves

would not permit entrance. Hollie then violently pushed Graves out of the way and began to

enter the home. In response, Graves pushed Hollie back outside. This incident happened after

the two had engaged in a “pretty heated argument” for about five minutes. At that point, Graves

told Hollie that he needed to come back in the morning. Hollie indicated that he was going to

“come back and shoot the whole house up.” At that time, Hollie began backing up on the porch.

Graves then shot Hollie. 2

        The State contends that the record is devoid of evidence regarding Graves’ state of mind

at the time he killed Hollie. To be entitled to any self-defense instruction involving deadly force,

Graves had to reasonably believe that deadly force was immediately necessary to protect himself

or others from Hollie’s use or attempted use of deadly force. See TEX. PENAL CODE ANN. § 9.32.

A “reasonable belief” is “a belief that would be held by an ordinary and prudent [person] in the

same circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(42) (West Supp. 2014).

“Deadly force” is “force that is intended or known by the actor to cause, or in the manner of its

use or intended use is capable of causing, death or serious bodily injury.” TEX. PENAL CODE

ANN. § 9.01(3) (West 2011).



2
 When asked, “After the man on the porch started backing up, what did your father do?” Trey responded, “ He
reached his hand out and shot him.”
                                                       5
       There is no evidence that Hollie used, or even attempted to use, deadly force. Each

witness who was asked testified that he or she saw no evidence that Hollie possessed any type of

weapon during the confrontation with Graves. Moreover, the evidence shows that Hollie was in

the process of backing away from Graves when Graves shot him, not attempting to enter the

habitation. Verbal provocation alone does not justify the use of deadly force against another.

TEX. PENAL CODE ANN. § 9.31(b)(1) (West 2011). There is nothing in the record to support the

contention that Graves reasonably believed the immediate use of deadly force was necessary to

protect himself against Hollie’s use or attempted use of unlawful deadly force. See Dearborn v.

State, 420 S.W.3d 366, 378 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (holding defendant

not entitled to self-defense instruction where evidence showed victim armed with nothing other

than fists and noting blows with fists not typically considered deadly force); Trammel v. State,

287 S.W.3d 336, 341 (Tex. App.—Fort Worth 2009, no pet.) (appellant not entitled to self-

defense instruction in absence of immediacy of threat from victim).

       Because there is nothing in the record to support a finding that Graves reasonably

believed the immediate use of deadly force was necessary, Graves was not entitled, in the first

instance, to a self-defense instruction. Therefore it logically follows that the trial court properly

denied his request to instruct the jury on the presumption of reasonableness and the lack of a

duty to retreat. See TEX. PENAL CODE ANN. § 9.32(b), (c).




                                                 6
III.   Extraneous-Offense Evidence

       In his third point of error, Graves contends that the trial court erred in admitting evidence

of his alleged drug dealing prior to the date of the offense for which he was being tried. At trial,

Graves’ neighbor, Michael Davis, Jr., testified as follows:

       Q:      Now, I’m asking you in a period of time right before May 11, did you see
       a lot of traffic at that house, meaning people coming and staying a short period of
       time and leaving?

       A:      Yes, ma’am.

       Q:      Did you see what you could identify as narcotics transactions there?

               [Defense Counsel]: Object to that as an extraneous offense, Your Honor.

               THE COURT: I’m going to overrule the objection . . . .

               [Defense Counsel]: And ask that we have a running objection to any
       further questions about trafficking and narcotics.

               THE COURT: I’ll permit a running objection.

       Q:      Did you see what you could identify as narcotics transactions?

       A:      Yes, ma’am.

       Q:      And was Harold Graves involved?

       A:      Yes, ma’am.

                       ....

       Q:      So what we have is two occasions of some guy you recognize supposedly
       getting a baggie outside of Harold’s house.

       A:      Yes.

       Q:      And you don’t remember what it is?

                                                 7
         A:        No.
                             ....

         Q:        On what days?

         A:        I don’t know. It’s been a while.

Davis’ testimony was offered for the purpose of demonstrating that Graves was engaged in a

criminal activity at the time the shooting occurred, such that Graves would not be entitled to a

self-defense instruction which included the “Castle Doctrine” language discussed in the previous

section of this opinion. 3

         A.        Standard of Review

         On appeal, Graves complains that Davis’ testimony should have been excluded under

Rules 402, 403, and 404(b) of the Texas Rules of Evidence. See TEX. R. EVID. 402, 403, 404(b).

We review a trial court’s admission of evidence for an abuse of discretion. Sanders v. State, 422

S.W.3d 809, 812 (Tex. App.—Fort Worth 2014, pet. ref’d). We will uphold the trial court’s

ruling if it is reasonably supported by the record and is correct under any theory of law

applicable to the case. James v. State, 335 S.W.3d 719, 723 (Tex. App.—Fort Worth 2011, no

pet.) (citing Willover v. State, 70 S.W.3d 841, 845 (Tex. Crim. App. 2002)). We reverse the

ruling only if it lies outside the zone of reasonable disagreement. See Sanders, 422 S.W.3d at

812–13.




3
 In a pretrial conference, the trial court stated, “If self-defense is an issue, then I think the State is entitled to attempt
to show that a certain portion of it may not apply if the defendant was engaged in criminal activity. So the Court
will permit the State to go into drug traffic at the time and immediately before the commission of the alleged
offense.”
                                                              8
         B.     Preservation of Error

         At trial, Graves’ sole objection to the referenced testimony was based on Rule 404. See

TEX. R. EVID. 404. Although Graves complains on appeal that Davis’ testimony should have

been excluded because it was irrelevant (Rule 401) and unfairly prejudicial (Rule 403), these

complaints were not presented to the trial court. As a general rule, to preserve a complaint for

appellate review, a party must make a timely request, objection, or motion in the trial court

setting out the specific grounds for the desired ruling if they are not apparent from the context of

the request, objection, or motion. Saldano v. State, 70 S.W.3d 886–87 (Tex. Crim. App. 2002);

see TEX. R. APP. P. 33.1(a). Further, the trial court must have ruled on the request, objection or

motion. TEX. R. APP. P. 33.1(a)(2). We may not address the merits of an issue that has not been

preserved for appeal. Ford v. State, 305 S.W.3d 530, 532 (Tex. Crim. App. 2009); Benson v.

State, 240 S.W.3d 478, 483 (Tex. App.—Eastland 2007, pet. ref’d) (holding relevance and unfair

prejudice complaints not preserved for appellate review when no objection made at trial).

Because Graves has not preserved for appellate review his complaint that Davis’ testimony was

irrelevant under Rule 401 and unfairly prejudicial under Rule 403, we overrule these points of

error.

         C.     Rule 404 Analysis

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

person in order to show action in conformity therewith.” TEX. R. EVID. 404(b). Such evidence

“may, however, be admissible for other purposes, such as proof of motive, opportunity intent,

preparation, plan, knowledge, identity, or absence of mistake or accident . . . .” Id. “The ‘other

                                                 9
purposes’ listed in Rule 404(b) are not exclusive or exhaustive but are merely representative.”

Render v. State, 347 S.W.3d 905, 920–21 (Tex. App.—Eastland 2011, pet. ref’d) (citing

Robinson v. State, 844 S.W.2d 925, 928 (Tex. App.—Houston [1st Dist.] 1992, no pet.)). For

example, when an accused claims self-defense, the State may introduce evidence of prior violent

acts where the accused was an aggressor in order to show intent and to rebut the defense. Jones

v. State, 241 S.W.3d 666, 669 (Tex. App.—Texarkana 2007, no pet.).

        Here, the State’s purpose in offering Davis’ testimony—that Graves ran a “drug

house”—was to rebut Graves’ claimed entitlement to self-defense. More precisely, the State

wanted to prove that, because Graves was engaged in criminal activity, he was not entitled to

additional instructions regarding the presumption of reasonableness and the lack of a duty to

retreat in conjunction with the court’s instruction on self-defense. See TEX. PENAL CODE ANN. §

9.32(b), (c), (d).

        We initially note that Davis never testified that Graves ran a “drug house.” Davis

testified that he witnessed what he believed to be Graves’ involvement in “narcotics

transactions” on two occasions, at some undetermined time prior to the date of Hollie’s death on

May 11, 2012.

         “Criminal activity” appears in two different sections of the self-defense statute. First,

the use of deadly force is presumed reasonable if the actor “was not otherwise engaged in

criminal activity, other than a Class C misdemeanor that is a violation of the law or ordinance

regulating traffic at the time the force was used.”      TEX. PENAL CODE ANN. § 9.32(b)(3)

(emphasis added). Second, a person is not required to retreat before using deadly force if that

                                               10
person is not, among other things, “engaged in criminal activity at the time the deadly force is

used.” TEX. PENAL CODE ANN. § 9.32(c) (emphasis added). Both sections of the statute require

the criminal activity to occur at the time deadly force was used. Davis’ testimony that he

believed Graves was involved in two narcotics transactions at some unknown time prior to the

shooting does nothing to establish that Graves was involved in criminal activity at the time

deadly force was used. Davis’ extraneous-offense testimony was therefore inadmissible under

Rule 404(b).

       Having determined that the evidence was erroneously admitted, we must now decide

whether the admission of this evidence was so harmful as to require a new trial. The erroneous

admission of extraneous-offense evidence is not constitutional error. Higginbotham v. State, 356

S.W.3d 584, 592 (Tex. App.—Texarkana 2011, pet. ref’d) (citing Casey v. State, 215 S.W.3d

870, 885 (Tex. Crim. App. 2007)). Rule 44.2(b) of the Texas Rules of Appellate Procedure

provides that an appellate court must disregard a nonconstitutional error that does not affect a

criminal defendant’s “substantial rights.” TEX. R. APP. P. 44.2(b). An error affects a substantial

right of the defendant when the error has a substantial and injurious effect or influence on the

jury’s verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). Nonconstitutional

error is not grounds for reversal if, “after examining the record as a whole,” there is “fair

assurance that the error did not influence the jury, or had but a slight effect.” Motilla v. State, 78

S.W.3d 352, 355 (Tex. Crim. App. 2002) (internal quotation marks omitted); Johnson v. State,

967 S.W.2d 410, 417 (Tex. Crim. App. 1998).




                                                 11
       In assessing the likelihood that the jury’s decision was adversely affected by the error, we

“consider everything in the record, including any testimony or physical evidence admitted for the

jury’s consideration, the nature of the evidence supporting the verdict, the character of the

alleged error and how it might be considered in connection with other evidence in the case.”

Motilla, 78 S.W.3d at 357 (quoting Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App.

2000)). We may also consider, in conducting a harm analysis, the presence of overwhelming

evidence of guilt. Id.

       The evidence of Graves’ guilt is strong. Graves was aware of the fact that Conner traded

cocaine for a cell phone and that Hollie wanted to undo the deal. Graves was expecting trouble

from Hollie that night and told Trey that Hollie might be coming over concerning a problem with

a cell phone. Graves even suggested that Trey might have to stay with his grandmother that

night because Conner was arguing with “some dude” over a cell phone.

       Iglesias testified that, on the evening before the shooting, Conner had agreed to drive her

to Weatherford. Conner later told Iglesias that she could not make the trip that evening because

“some sh-- was about to go down.” Later that evening, Conner asked Graves, “[Y]ou got my

back on this?” Graves responded affirmatively. Conner indicated that the dispute related to a

drug deal in which Conner gave crack cocaine to Hollie in exchange for his cell phone, and the

trouble arose when Hollie wanted the cell phone back. Like Trey, Iglesias also heard the

argument between Hollie and Graves prior to hearing the sound of a gunshot.

       As Graves suspected, Hollie showed up on his doorstep demanding the return of his cell

phone. After a heated argument, Hollie threatened to come back and shoot the place up. After

                                               12
making this statement, Hollie began to back away from Graves. As Hollie backed up, Graves,

according to Trey’s testimony, “reached his hand out and shot him.” There is no evidence that

Hollie was armed with any type of weapon at the time of his death. As Trey, Graves, Conner

and Iglesias drove away from the residence, Graves stated that he needed to get the gun to his

cousin’s house. Iglesias understood that Graves was removing the gun from the premises.

       In addition to evidence of guilt, we are to assess “the character of the alleged error and

how it might be considered in connection with other evidence in the case.” Id. Here, the

character evidence regarding Graves’ involvement in narcotics transactions weighs in favor of a

finding of harm. “By its very nature, an improperly admitted extraneous offense tends to be

harmful. It encourages a jury to base its decisions on character conformity, rather than evidence

that the defendant committed the offense with which he or she has been charged.” Jackson v.

State, 320 S.W.3d 873, 889 (Tex. App.—Texarkana 2010, pet. ref’d).

       In considering how the erroneously admitted evidence might be considered in connection

with other evidence in the case, the emphasis by the State should be considered. Jackson, 320

S.W.3d at 890. In closing, the State argued that Graves’ actions were not taken in self-defense

and did not focus on the extraneous-offense evidence. The State characterized Graves’ residence

as a “drug house” on one occasion. This comment was confined to two lines in a multi-volume

record. Compare DeLeon v. State, 77 S.W.3d 300, 316 (Tex. App.—Austin 2001, pet. ref’d)

(concluding admission of extraneous-offense evidence was harmful where “[m]ore time was

spent developing the extraneous wrongdoing than proving the ultimate issues alleged in the




                                               13
indictment”). Defense counsel briefly mentioned Davis’ testimony to point out its lack of

credibility.

        Given the brevity of the testimony on this issue, the State’s lack of emphasis, and the

strong evidence of Graves’ guilt, we have a fair assurance that the error did not influence the jury

or had but a slight effect in its determination that Graves was guilty of the charged offense of

murder.

IV.     Failure to Charge Jury on Lesser-Included Offense

        The indictment on which Graves was tried originally included an allegation of aggravated

assault with a deadly weapon, listed as count two. Prior to closing arguments, the State waived

count two of the indictment. Following the State’s waiver, Graves requested submission of the

aggravated assault with a deadly weapon charge as a lesser included offense of the primary

murder offense. The trial court declined to so instruct the jury. On appeal, Graves contends that

he was entitled to an aggravated assault instruction because the elements of the lesser offense are

included within the elements of the greater offense and because there was evidence suggesting

that he lacked the requisite mental state for a murder conviction.

        The Texas Court of Criminal Appeals has set forth a two-step analysis to determine

whether a defendant is entitled to a lesser-included offense instruction. Hall v. State, 225 S.W.3d

524, 528 (Tex. Crim. App. 2007); Jones v. State, 241 S.W.3d 666, 670 (Tex. App.—Texarkana

2007, no pet.). Under the “cognate-pleadings” test, we initially determine whether the elements

of the lesser-included offense are included within the proof necessary to establish the elements of

the charged offense. Hall, 225 S.W.3d at 535–36; Jones, 241 S.W.3d at 670. “This is a question

                                                14
of law, and it does not depend on the evidence to be produced at trial.” Rice v. State, 333 S.W.3d

140, 144 (Tex. Crim. App. 2011).

        Only after the first step is answered positively do we proceed to the second step of

determining if there is some evidence to support an instruction on the lesser-included offense.

Hall, 225 S.W.3d at 528; Jones, 241 S.W.3d at 670–71. The existence of some evidence,

“within or without the defendant’s testimony, which raised the lesser included offense controls

the issue of whether an instruction on the lesser included offense should be given.” Jones v.

State, 984 S.W.2d 254, 257 (Tex. Crim. App. 1998). The evidence must, however, establish the

lesser-included offense as a valid rational alternative to the offense charged, Wesbrook v. State,

29 S.W.3d 103, 113 (Tex. Crim. App. 2000), and must show that if the defendant is guilty, he is

guilty only of the lesser-included offense. Hall, 225 S.W.3d at 536; Jones, 241 S.W.3d at 671

(citing Enriquez v. State, 21 S.W.3d 277, 278 (Tex. Crim. App. 2000)).

        In applying the first step of the lesser-included-offense analysis, we do not consider the

evidence presented at trial. Instead, we consider the statutory elements of murder, as modified

by the particular allegations in the indictment. In this case, the State was required to prove that

(1) Graves, (2) with intent to cause Hollie serious bodily injury, (3) committed an act clearly

dangerous to human life—shooting Hollie with a gun—(4) that caused Hollie’s death. See TEX.

PENAL CODE ANN. § 19.02(b)(2) (West 2011). To these we compare the elements of the lesser

offense of aggravated assault with a deadly weapon causing bodily injury. 4 Such offense is


4
Aggravated assault can be committed in different ways. We restrict our consideration here to those apparent in
Graves’ request in the trial court. See TEX. PENAL CODE ANN. § 22.02 (West 2011).

                                                     15
committed if a person (1) “intentionally, knowingly, or recklessly causes bodily injury to

another” and (2) “uses or exhibits a deadly weapon.” TEX. PENAL CODE ANN. §§ 22.01(a),

22.02(a)(2) (West 2011).

            Here, a charge of aggravated assault causing bodily injury while using a deadly weapon

would have differed from the indictment’s murder charge only with respect to (1) the inclusion

of additional, lesser culpable mental state options, and (b) the absence of the requirement that the

bodily injury result in death. We thus conclude that, because the elements of aggravated assault

causing bodily injury are “established by proof of the same or less than all the facts required to

establish the commission of the offense charged,” the first prong of the cognate pleadings test is

satisfied. Hall, 225 S.W.3d at 536. 5

            The second question is whether there is any evidence that Graves, if he is guilty, is guilty

only of the lesser offense. Id. According to the State, the record does not contain evidence from

which a jury could rationally acquit Graves of murder while convicting him of aggravated assault

causing bodily injury while using a deadly weapon. This reasoning is based, in part, on the

premise that the “bodily injury” in this case must logically refer to Hollie’s death. The evidence

shows that Graves shot and killed Hollie with a handgun while Hollie was standing on Graves’

porch. Although Graves points out the weakness in Trey’s testimony witnessing this event, i.e.,

it was dark at the time of the shooting and Trey was hiding behind a wall and could not see a

gun, it is apparent that Graves’ action caused Hollie’s death. Iglesias testified that she heard

Graves say shortly after the shooting, “I just killed . . . [Hollie].”


5
    The State concedes the first element of the cognate pleadings test is satisfied.
                                                              16
       In Jackson v. State, 992 S.W.2d 469 (Tex. Crim. App. 1999), Jackson was tried for

capital murder and requested a jury instruction on the lesser offense of aggravated assault by

recklessly causing serious bodily injury. Id. at 474–75. In that case, there was no doubt that

Jackson caused the death of the victim and no evidence that the victim suffered a lesser form of

bodily injury. In finding no error in the trial court’s refusal to instruct the jury on aggravated

assault, the court noted that “[a] murder defendant is not entitled to an instruction on the lesser

included offense of aggravated assault when the evidence showed him, at the least, to be guilty

of a homicide.” Id. at 475. The court continued, “Since there was no evidence from which a

rational jury could conclude that appellant did other than cause the death of the victim, the only

lesser included offense that was raised by the evidence of recklessness was manslaughter.” Id.

       As in Jackson, Graves likewise contends that there is sufficient evidence of recklessness

in the record to support the inclusion of the requested lesser-included-offense instruction. Even

assuming, though, that there is some evidence of recklessness, the fact remains that Hollie died

from the gunshot wound inflicted by Graves. Although Graves never admitted killing Hollie,

there is “no evidence from which a rational jury could conclude” that Graves “did other than

cause the death” of Hollie. Id. at 474–75; Armstrong v. State, 179 S.W.3d 84, 87 (Tex. App.—

Fort Worth 2005, no pet.) (holding Armstrong was not entitled to instruction on aggravated

assault in capital murder case where no dispute that Armstrong caused victim’s death); see

Hernandez v. State, 416 S.W.3d 522, 526–27 (Tex. App.—Eastland 2013, pet. ref’d) (no

evidence in record to permit jury to acquit appellant of murder while convicting him of lesser-




                                                17
included offense of aggravated assault). Accordingly, Graves was not entitled to an instruction

on the lesser-included offense of aggravated assault.

V.     Hearsay Evidence

       Graves next complains of error in the admission of hearsay statements allegedly made by

Conner to Iglesias regarding Conner’s exchange of crack cocaine for Hollie’s cell phone. The

following questioning of Iglesias by the State provides context for Graves’ complaint:

               Q.      Now, you said you went to the bedroom?

               A.      Yes.

               Q.      Which bedroom was that?

               A.     The bedroom in the back that Dwanna was in.

               Q.     Was there anybody staying in that bedroom already?

               A.    No. It was Dwanna and I went to the back bedroom. Harold was
       on the couch.

               Q.     But Dwanna was also there.

               A.     Yes.

              Q.     Now, when you were back there with Dwanna, was there any
       conversation you heard between she and Harold?

              A.      Yeah. She was in the back bedroom and he was on the couch, and
       there was an exchange where she asked Harold, she said, you got my back on this,
       you got my back? And he said, yeah, I got your back. Begrudgedly [sic] he said
       it.

               Q.      So she’s asking him, do you have my back on this, and he’s saying,
       yes, I do, begrudgingly.

               A.     Yes.

                                                18
       Q.     And did you ask her what that was about?

        A.     Yeah. I said, what’s that all about? And she said that there was
this dude and she had -- she had sold him some crack and that he gave her –

       Q.      Hold on before you go through that. Specifically she’s talking
about a drug deal that she engaged in, correct?

       A.     Yes.

       Q.     So she is describing a criminal act she has committed.

       A.     Yes.

       Q.     Go ahead and describe to us what she said.

       A.     She said that she gave him the crack –

              [Defense Counsel]:     Object to hearsay, Your Honor.

              THE COURT: I’m going to overrule the objection at this time.

              [The State]:     Thank you, Your Honor.

      A.     And in exchange he gave her the phone and now he wants the
phone back, but she ain’t giving it back to him. A deal is a deal.

       Q.     So she’s indicating that she had traded this cell phone for crack.

       A.     Yes.

       Q.      And this is a matter that previously she was discussing with
Harold, right?

       A.     I assume so.

       Q.     Because she told you that’s what this conversation is about.

       A.     Right, uh-huh.




                                       19
            Graves complains his objection was erroneously overruled, positing that the objected-to

evidence is not admissible as a statement against interest.                          See TEX. R. EVID. 803(24). 6

Conversely, the State contends that the trial court properly overruled Graves’ objection as

untimely and that the complained-of testimony was cumulative of evidence already admitted

without objection.

            A.       Standard of Review

            We review the trial court’s decision to admit evidence under an abuse of discretion

standard. Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). “A trial court does not

abuse its discretion if the decision to admit evidence is within the ‘zone of reasonable

disagreement.’” Marsh v. State, 343 S.W.3d 475, 478 (Tex. App.—Texarkana 2011, pet. ref’d)

(quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g)). “If

the trial court’s decision on the admission of evidence is supported by the record, there is no

abuse of discretion, and the trial court will not be reversed.” Id. (citing Osbourn v. State, 92

S.W.3d 531, 537 (Tex. Crim. App. 2002); Montgomery, 810 S.W.2d at 379). We will not

substitute our own decision for that of the trial court. Id. (citing Moses v. State, 105 S.W.3d 622,

627 (Tex. Crim. App. 2003)).

            B.       Analysis

            To preserve error for appellate review, an appellant must make a timely and specific

objection. TEX. R. APP. P. 33.1(a); TEX. R. EVID. 103(a)(1). To be considered timely, the




6
    At trial, the State did not proffer a theory of admissibility pertaining to the complained-of evidence.
                                                              20
objection must be made as soon as the ground for complaint is apparent or should be apparent.

Aguilar v. State, 26 S.W.3d 901, 905 (Tex. Crim. App. 2000).

       The referenced testimony indicates that Conner and Iglesias were engaged in a

conversation in which Conner told Iglesias that Graves responded affirmatively when Conner

asked him if “you got my back on this, you got my back?” and that Graves had Conner’s “back”

relative to a drug deal in which Conner had engaged. This testimony was admitted in the

absence of any objection from Graves. Although Graves objected to the question, “She said she

gave him the crack[,]” Iglesias had already testified that Conner sold crack to “some dude.”

Graves failed to object to that testimony, and thus, his objection to the second question was not

timely. Graves, therefore, failed to preserve this complaint for appeal. See TEX. R. APP. P.

33.1(a); TEX. R. EVID. 103(a)(1); Lozano v. State, 359 S.W.3d 790, 823 (Tex. App.—Fort Worth

2012, pet. ref’d) (holding that objection must be made as soon as basis for objection becomes

apparent and that failure to object in timely manner forfeits complaints about admissibility of

evidence). Moreover, evidence of the “crack” sale was previously admitted without objection.

See Lozano, 359 S.W.3d at 823.

       Graves nevertheless contends that his objection was timely because, prior to his

objection, there had been no testimony indicating that the purported drug deal involved Hollie or

Hollie’s cell phone. Trey had previously testified, though, that Graves told him that Dwanna was

arguing with “some dude” about a cell phone and that Trey might have to spend the night at his

grandmother’s house because “an incident” was happening. Trey saw the cell phone his father

mentioned sitting on the couch of Graves’ home on the evening prior to the shooting. Trey

                                               21
further testified that, at approximately 4:00 a.m. the following morning, he was awakened by an

argument his father was having “with Eric [Hollie].” Trey heard Hollie ask about a cell phone

and heard his father tell Hollie he could come back and get the phone in the morning. No

objection was posed to this testimony. To the extent Graves’ hearsay objection is broadly

construed to encompass Iglesias’ testimony that Graves and Conner discussed the “crack”

exchange for a cell phone and that the cell phone owner wanted it returned, such objection was

properly overruled. This testimony was cumulative of that already admitted without objection.

VI.    Sufficiency of the Evidence to Support Tampering Conviction

       In his final point of error, Graves contends that the evidence was insufficient to support

his conviction of tampering with physical evidence as alleged in count three of the indictment, by

secreting a firearm with knowledge that an investigation was pending or in progress.

       A.      Standard of Review

       In evaluating legal sufficiency, we review all the evidence in the light most favorable to

the trial court’s judgment to determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex.

Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305

S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref’d). We examine legal sufficiency under

the direction of the Brooks opinion, while giving deference to the responsibility of the jury “to

fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)




                                               22
(citing Jackson, 443 U.S. at 318–19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007).

            B.       Analysis

            A person commits the offense of tampering with physical evidence if the person, “(1)

knowing that an investigation or official proceeding is pending or in progress, (2) alters,

destroys, or conceals any record, document, or thing, (3) with intent to impair its verity,

legibility, or availability as evidence in the investigation or official proceeding.” TEX. PENAL

CODE ANN. § 37.09(a)(1) (West Supp. 2014); Carnley v. State, 366 S.W.3d 830, 833–34 (Tex.

App.—Fort Worth 2012, pet. ref’d). Graves was indicted under this section of the statute, 7 and

the jury was likewise charged under this section of the statute. 8

            At trial, there was evidence that, although Trey witnessed the shooting, he neither saw the

gun nor heard Graves discuss the gun. Iglesias testified that she heard Graves admit that he shot

Hollie and later heard him say while in the car leaving the scene of the shooting that “he needed

7
    The indictment stated,

            THAT THE DEFENDANT . . . ON OR ABOUT THE 11TH DAY OF MAY, 2012, DID THEN
            AND THERE KNOWING THAT AN INVESTIGATION WAS PENDING OR IN PROGRESS,
            DID ALTER, DESTROY, OR CONCEAL A RECORD, DOCUMENT, OR THING WITH
            INTENT TO IMPAIR ITS VERITY OR AVAILABILITY AS EVIDENCE IN SAID
            INVESTIGATION, TO-WIT: BY SECRETING A FIREARM.
8
    The court’s charge stated,

            Now, if you find from the evidence beyond a reasonable doubt that on or about the 11th day of
            May, 2012, in Tarrant County, Texas, the Defendant, Harold L. Graves, Jr., did then and there
            knowing that an investigation was pending or in progress, did alter, destroy, or conceal a record,
            document, or thing with intent to impair its verity or availability as evidence in said investigation,
            to-wit: by secreting a firearm, then you will find the Defendant guilty of the offense of tampering
            with physical evidence as charged in Count Three of the indictment.



                                                             23
to get the gun to his cousin’s house.” Iglesias did not see the gun. Graves’ uncle, Winzy Graves,

testified that, when Graves, Conner, Trey, and Iglesias arrived at his house after the shooting that

none of them had a gun. And, when the police searched Winzy’s house the following morning,

they did not find a gun.

       Graves claims that, other than Iglesias’ testimony that Graves needed to get the gun to his

cousin’s house, there was no evidence that he removed the gun from the house or that he had

attempted to “alter, destroy or conceal” the firearm by “secreting” it as alleged in the indictment.

The evidence is sufficient to permit the jury to infer that Graves was, indeed, in possession of a

firearm when he shot and killed Hollie. The firearm was never recovered. This fact, taken in

conjunction with Iglesias’ testimony that Graves indicated he needed to get the gun to his

cousin’s house, is sufficient to show that Graves concealed the firearm.

       Part two of the sufficiency issue is whether Graves concealed the firearm with knowledge

that an “investigation was pending or in progress” as alleged in the indictment. Here, we are

faced with the issue of a variance between the indictment and the proof at trial. At trial, there

was evidence indicating that Graves took the firearm used to shoot Hollie from the scene on the

night (early morning) of the shooting. This occurred before the Fort Worth Police Department

was aware that an offense had been committed. The police were not contacted until later that

morning, when Sonia Hunt called 9-1-1 to report sighting a man, who appeared to be deceased,

lying on the porch of Graves’ home. This evidence cannot support the claim that Graves

removed the firearm from the scene at a time when he knew an investigation was pending or in

progress.

                                                24
            Detective Barron of the Fort Worth Police Department testified that, if a weapon was

hidden from the Fort Worth Police Department after a shooting but before the investigation has

begun, then he considers the gun hidden in contemplation of removing it from the investigation.

This testimony does nothing to establish that the gun was removed while the investigation was

pending or in progress. This testimony, however, is evidence that Graves, “knowing an offense

has been committed,” concealed the firearm “with intent to impair is verity, legibility, or

availability as evidence in any subsequent investigation of or official proceeding related to the

offense.” See TEX. PENAL CODE ANN. § 37.09(d)(1) (West Supp. 2014) (emphasis added).

Graves, however, was not indicted under Section 37.09(d). 9

            In addressing a claim of evidentiary sufficiency, we are to determine whether any rational

jury could have found the essential elements of tampering with physical evidence beyond a

reasonable doubt. Brooks, 323 S.W.3d at 912. The essential elements of this offense are to be

determined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997). The hypothetically correct jury charge is “one that accurately sets out the

law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof

or unnecessarily restrict the State’s theories of liability, and adequately describes the particular


9
    Section 37.09(d)(1) provides,

            A person commits an offense if the person:

            (1) knowing that an offense has been committed, alters, destroys, or conceals any record,
            document, or thing with intent to impair its verity, legibility, or availability as evidence in any
            subsequent investigation of or official proceeding related to the offense . . . .

TEX. PENAL CODE ANN. § 37.09(d)(1) (emphasis added).


                                                           25
offense for which the defendant was tried.” Id. The law “as authorized by the indictment”

includes “the statutory elements of the offense . . . as modified by the charging instrument.”

Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). The hypothetically correct jury

charge need not, however, incorporate allegations that give rise to immaterial variances. Gollihar

v. State, 46 S.W.3d 243, 256 (Tex. Crim. App. 2001). Conversely, a material variance must be

included within the hypothetically correct charge. Id. at 257. As explained by the Texas Court

of Criminal Appeals in Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012),

        A variance in pleading and proof can occur in two different ways. First, a
        variance can involve the statutory language that defines the offense. This can
        happen when a statute specifies alternate methods by which an offense could be
        committed, the charging instrument pleads one of those alternate methods, but the
        State proves, instead, an unpled method. For example, the retaliation statute
        makes it a crime to threaten a “witness” or “informant.” The first type of variance
        occurs if the State pleads only “witness” in the charging instrument and proves
        only the unpled element of “informant” at trial. Second, a variance can involve a
        non-statutory allegation that is descriptive of the offense in some way. For
        example, the charging instrument pleads “Mary” as the victim, but the State
        proves “John” at trial. Or the charging instrument pleads the offense was
        committed with a knife, but the State proves at trial that a baseball bat was used. 10

Id. at 294 (citations omitted).

        Here, the variance between the pleading and the proof involves the statutory language

that defines the offense and is, therefore, material. The language of Section 37.09(a) defines one

means of committing the offense of tampering with physical evidence as altering, destroying, or

concealing anything with the intent to impair its availability as evidence in an investigation, with

10
  In Johnson, the variance was of the second type, a nonstatutory allegation. There, Johnson was charged with
having committed aggravated assault by intentionally or knowingly causing serious bodily injury by hitting the
victim with his hand or by twisting her arm with his hand. The victim testified that Johnson threw her against a
wall, which caused her serious bodily injury. The court held that the variance involved a nonstatutory type of
allegation. Johnson, 364 S.W.3d at 298.

                                                      26
knowledge that an investigation is pending or in progress. TEX. PENAL CODE ANN. § 37.09(a)

(West Supp. 2014). Section 37.09(d) defines another means of committing the offense of

tampering with physical evidence as altering, destroying, or concealing anything, knowing that

an offense has been committed, with the intent to impair its availability as evidence in any

subsequent investigation. TEX. PENAL CODE ANN. § 37.09(d)(1). Section 37.09 proscribes

several different methods of tampering with physical evidence. The State alleged only one

specific means of tampering with physical evidence—secreting the firearm with knowledge of a

pending or current investigation and with the intent to impair its verity or availability as evidence

in the investigation. In sum, Graves was indicted for a single offense of tampering with physical

evidence, and the State alleged he committed this offense in one specific way. In a variance

situation, “the State has proven the defendant guilty of a crime, but has proven its commission in

a manner that varies from the allegations in the charging instrument.” Gollihar, 46 S.W.3d at

246; see, e.g., Rabb v. State, 434 S.W.3d 613, 617–18 (Tex. Crim. App. 2014) (conviction

reversed because State pled one statutory alternative for conduct element of tampering but

proved another statutory alternative); Lumpkin v. State, 129 S.W.3d 659, 663 (Tex. App.—

Houston [1st Dist.] 2004, pet. ref’d) (evidence insufficient to sustain tampering conviction when

indictment alleged investigation was in progress and only investigation in progress at time was

traffic stop).

        In Geick v. State, 349 S.W.3d 542, 547–48 (Tex. Crim. App. 2011), the court determined

that when pled in an indictment, a statutory definition becomes an element of the offense that the

State must prove. In that case, Geick was indicted for theft of a bulldozer by deception. The

                                                 27
jury charge allowed for a conviction without limiting the manner in which the theft was

committed, and Geick was found guilty “as charged in the indictment.” Id. at 544. On appeal,

the Fourteenth Court of Appeals acquitted Geick because there was no evidence of deception.

The Texas Court of Criminal Appeals affirmed, holding that, “when a statute lays out several

alternative methods of committing the offense, and the indictment alleges only one of those

methods, ‘the law as authorized by the indictment’ is limited to the method specified in the

indictment.” Id. at 545 (citing Gollihar, 46 S.W.3d at 254–55); see also Cada v. State, 334

S.W.3d 766 (Tex. Crim. App. 2011) (“Under Jackson, the State must prove the statutory

elements that it has chosen to allege, not some other alternative statutory elements that it did not

allege.”).

        Here, the State was not required to plead that the firearm was secreted with knowledge

that an investigation was pending or in progress.        Having done so, however, “the law as

authorized by the indictment” is limited to the method specified in the indictment. Geick, 349

S.W.3d at 545. Accordingly, the State was required to prove, beyond a reasonable doubt, that

Graves secreted the firearm knowing an investigation was pending or in progress and with the

intent to impair its verity or availability. The State failed in this task. We find that the evidence

is legally insufficient to support the conviction of tampering with physical evidence.




                                                 28
VII.   Conclusion

       We affirm the trial court’s judgment related to Graves’ murder conviction. Because the

evidence is legally insufficient to support the judgment of conviction for tampering with physical

evidence, we reverse that judgment and render a judgment of acquittal.




                                             Jack Carter
                                             Justice

Date Submitted:       October 14, 2014
Date Decided:         December 11, 2014

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