Opinion issued October 15, 2013




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                         ————————————
                            NO. 01-12-00486-CR
                          ———————————
                   PHILLIP ERICC BOLDON, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 176th District Court
                          Harris County, Texas
                      Trial Court Cause No. 1270589


                        MEMORANDUM OPINION

      Phillip Ericc Boldon appeals a judgment convicting him of murder. See

TEX. PENAL CODE ANN. § 19.02 (West 2011). A jury found Boldon guilty and

assessed his punishment at life confinement in the Texas Department of Criminal

Justice. Boldon raises four issues on appeal. He contends: (1) the evidence is
legally insufficient to support his conviction; (2) the trial court erred in overruling

his motion for directed verdict; (3) the trial court erred in admitting a letter he

allegedly wrote while confined in Harris County Jail; and (4) the trial court erred in

denying his motion to suppress evidence found in his apartment. We affirm.

                                    Background

      At approximately 2:00 a.m. on June 2, 2010, Houston firefighters

extinguished a car fire in the parking lot of Renaissance Village at Shadow Lake

apartments. They discovered a body in the car’s back seat and contacted the

Houston Arson Bureau and the Houston Police Department.

      Arson investigator R. Koryciak of the Houston Arson Bureau determined the

fire was an intentional fire fueled by an accelerant. He based his determination on

his knowledge of fire patterns and evidence collected from the scene, specifically,

a Walmart water bottle and matching cap. Investigator Koryciak observed a small

amount of clear liquid in the bottle and smelled gasoline. An accelerant detection

dog alerted to the presence of accelerants on the bottle and cap.

      HPD and the Harris County Medical Examiner’s Office identified the

deceased as Sarah Weyrick. HPD determined the burnt car was registered to

Weyrick, and the ME’s Office later matched radiographs of the deceased’s teeth to

Weyrick’s known dental records.




                                          2
      Dr. L. Flores performed Weyrick’s autopsy and Dr. J. Love consulted. Both

doctors concluded Weyrick was dead before the fire began.              Based on

decomposition and other factors, they estimated time of death was May 31 or June

1. Dr. Flores concluded cause of death was sharp force injuries to the neck. She

ruled the death a homicide.

      On July 15, the State charged Boldon with Weyrick’s murder. At trial, the

State argued Boldon murdered Weyrick at his Renaissance Village apartment on

May 31 then set her body on fire on June 2.

      Brett Scally, a mutual acquaintance of Boldon and Weyrick, testified that

Weyrick was a prostitute and that he had given Boldon her phone number because

Boldon “was interested in meeting somebody.”

      To prove that Boldon murdered Weyrick, the State used Renaissance Village

surveillance video and Weyrick’s cell phone records to establish a timeline for

May 31. At 2:48 a.m., a young man with Boldon’s coloring left Renaissance

Village on foot through the back gate. At 2:51 a.m., Weyrick received a phone call

from a pay phone located down the street from Boldon’s apartment. Judging from

the cell tower Weyrick’s phone used to receive the call, Weyrick was near her

apartment. At 3:02 a.m., the same man who had left Renaissance Village returned

on foot through the back gate. At 3:24 a.m., Weyrick received another incoming

call. This time, the call connected through a cell tower near Boldon’s apartment.

                                        3
Also at 3:24 a.m., a car identical to Weyrick’s pulled into the Renaissance Village

parking lot. The car never left the apartment complex.

      Howard Martin, a known drug dealer, testified that he met Boldon in the

Renaissance Village parking lot to conduct a “business transaction” sometime

between 3:00 a.m. and 6:00 a.m on May 31. Martin further testified that Boldon

paid him with cash and the cash had blood on it. When Martin asked him about

the blood, Boldon responded that he had beaten up his girlfriend. In addition, the

State introduced evidence that four brief phone calls—each of only a few seconds

duration, indicating that the calls were probably not picked up—were made from

Weyrick’s phone between 6:29 a.m. and 6:31 a.m. on May 31 to Martin’s phone

number. Weyrick’s phone records showed that she had never called Martin before

that morning, and Martin testified that he did not know Weyrick and did not

answer any of the calls.

      Officer D. Smith, in the HPD crime scene unit, and C. Head, a criminalist in

the HPD forensic biology division, also testified. Officer Smith observed blood

spatter on Boldon’s bedroom wall and closet. The State admitted photographs of

the spatter into evidence.   Officer Smith also collected carpet samples from

Boldon’s apartment that appeared to be stained with blood. Head confirmed the

presence of blood and testified that DNA extracted from the carpet samples

matched DNA extracted from Weyrick’s remains.

                                        4
      The stain pattern on the living room carpet indicated the presence of stain on

stain. Officer Smith testified that such a pattern can indicate removal efforts.

When a person wets an already dried stain, the wetted area creates a new stain on

top of the original stain. Head explained that some of the living room carpet stains

tested negative for blood. She opined that the negative test results could have

resulted from the application of a carpet cleaner containing bleach.

      The State also introduced evidence implicating Boldon in the June 2 car fire.

Specifically, the State introduced video of a man who looked like Boldon

purchasing a Walmart-brand water bottle from a Walmart store near Boldon’s

apartment. The man had the same coloring as Boldon and, like Boldon, had a

tattoo on his shoulder.      The State introduced a copy of the receipt for the

transaction that was time stamped June 2, 1:30 a.m., approximately thirty minutes

before the fire began.

      Finally, the State introduced a letter Boldon allegedly wrote while confined

in Harris County Jail. In pertinent part, the letter said:

      My mom is gonna reveal some really messed up facts to you which is
      why I’m glad you have already moved. Nassier had made a
      Anonymous Tip to the police the day after it happened even though he
      had accepted money to clean up the mess. It’s sad that things even
      come down to this.

Deputy Sheriff P. Galvan testified that he intercepted the letter from the jail’s

outgoing mail.     The letter was addressed to Boldon’s mother at her house,

                                           5
indicated Boldon’s jail cell as the return address, bore Boldon’s SPN—a unique

number used to identify Boldon within Harris County Jail—and appeared to be

signed “P. Boldon, or B, with a B, scribble.” Although the letter was addressed to

Boldon’s mother at Boldon’s parents’ house, it was written to a woman named

Toni. The State introduced a photograph of a different letter addressed to Toni

Marrese at Boldon’s apartment.

      The jury convicted Boldon of murder and assessed his punishment at

confinement for life. This appeal followed.

                                     Discussion

I.    Sufficiency of the Evidence and Motion for Directed Verdict

      In his first and second points of error, Boldon contends the evidence is

legally insufficient to support his conviction and the trial court erred in overruling

his motion for directed verdict.        He emphasizes the State’s reliance on

circumstantial evidence and argues the State invited the jury to speculate on his

guilt rather than infer his guilt from the evidence. He also emphasizes the State’s

failure to prove motive and HPD’s failure to find a murder weapon.

A.    Standard of Review

      We consider Boldon’s first and second points of error under the same

standard. See Lewis v. State, 193 S.W.3d 137, 139–40 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (citing Williams v. State, 937 S.W.2d 479, 482 (Tex. Crim.

                                          6
App. 1996)) (“We treat a complaint of a denial of a motion for directed verdict as a

challenge to the sufficiency of the evidence to support a conviction.”). When

reviewing the sufficiency of the evidence, we view all of the evidence in the light

most favorable to the verdict to determine whether any rational fact finder could

have found the essential elements of the offense beyond a reasonable doubt.

McGregor v. State, 394 S.W.3d 90, 109 (Tex. App.—Houston [1st Dist.] 2012, pet.

ref’d) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979));

see also Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding

Jackson standard is only standard to use when determining sufficiency of

evidence). Our review of “all of the evidence” includes evidence that was properly

and improperly admitted. McGregor, 394 S.W.3d at 110 (quoting Clayton v. State,

235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

      The jurors are the exclusive judges of the facts, the credibility of the

witnesses, and the weight to be given to the testimony. Id. (citing Bartlett v. State,

270 S.W.3d 147, 150 (Tex. Crim. App. 2008)). A jury may accept one version of

the facts and reject another, and it may reject any part of a witness’s testimony. Id.

(citing Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986)). We may not

re-evaluate the weight and credibility of the evidence or substitute our judgment

for that of the fact finder. Id. (citing Williams v. State, 235 S.W.3d 742, 750 (Tex.

Crim. App. 2007)).       We afford almost complete deference to the jury’s

                                          7
determinations of credibility. Id. (citing Lancon v. State, 253 S.W.3d 699, 705

(Tex. Crim. App. 2008)). We resolve any inconsistencies in the evidence in favor

of the verdict. Id. (citing Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App.

2000)).

B.    Applicable Law

      A person commits murder if he intentionally or knowingly causes the death

of another person or intends to cause serious bodily injury and commits an act

clearly dangerous to human life that causes the death of another. TEX. PENAL

CODE § 19.02(b)(1), (2); Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App.

2013). A person acts intentionally, or with intent, with respect to the nature of his

conduct or to a result of his conduct when it is his conscious objective or desire to

engage in the conduct or cause the result. TEX. PENAL CODE § 6.03(a); Wise v.

State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). A person acts knowingly or

with knowledge of the nature of his conduct or circumstances when he is aware of

the nature of his conduct or that the circumstances exist. TEX. PENAL CODE

§ 6.03(b); Wise, 364 S.W.3d at 903.

       A murder conviction may be based on circumstantial evidence. Temple,

390 S.W.3d at 359 (citing Clayton, 235 S.W.3d at 778). Circumstantial evidence is

as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Id. (quoting

                                         8
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). In circumstantial

evidence cases, it is not necessary that every fact and circumstance point directly

and independently to the defendant’s guilt; it is enough if the conclusion is

warranted by the combined and cumulative force of all the incriminating

circumstances. Id. (quoting Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.

App. 1993)).

      The jury may draw inferences from circumstantial evidence, but it may not

draw conclusions based on speculation. Id. at 360 (citing Jackson, 443 U.S. at

319, 99 S. Ct. 2781 at 2789). An inference is a conclusion deducted from facts.

Hooper, 214 S.W.3d at 16. Speculation is mere theorizing or guessing about the

possible meaning of facts. Id.

C.    Analysis

      To prove that Boldon murdered Weyrick, the State had to prove that Boldon

knowingly or intentionally caused Weyrick’s death or intended to cause Weyrick

serious bodily injury and committed an act clearly dangerous to human life that

caused Weyrick’s death. See TEX. PENAL CODE § 19.02(b)(1), (2); Temple, 390

S.W.3d at 359.

      We conclude the evidence supports a rational inference that Boldon

murdered Weyrick.      First, there is evidence that Weyrick was at Boldon’s

apartment around the time of her death. Dr. Flores and Dr. Love testified that

                                        9
Weyrick died one or two days before the June 2 car fire. Surveillance video from

May 31 shows a man with Boldon’s coloring leaving Renaissance Village, the

complex in which Boldon lived, at 2:48 a.m. Weyrick’s phone records for May 31

indicate that she received a phone call from a pay phone near Renaissance Village

at 2:51 a.m. The surveillance video shows the same man who left Renaissance

Village returning to the apartment complex at 3:02 a.m. and a car identical to

Weyrick’s entering the apartment complex at 3:24 a.m. Martin’s testimony places

Boldon at his apartment between 3:00 a.m. and 6:00 a.m., at which time Boldon

paid Martin with bloody money, which Boldon explained was bloody because he

had beaten up his girlfriend. Weyrick’s phone records indicate that she went to

Boldon’s apartment complex in the middle of the night, after getting a 2:51 a.m.

call, and that the last four phone calls made from her phone were made between

6:29 a.m. and 6:31 a.m. to Martin, whom Weyrick had never previously called and

who testified he did not know Weyrick. Another witness, Scally, testified that he

gave Boldon Weyrick’s phone number because Boldon was interested in meeting

someone.

      The DNA evidence demonstrated that Weyrick’s blood was found inside

Boldon’s apartment. Officer Smith testified that he collected carpet samples from

Boldon’s apartment that appeared to be stained with blood. Head confirmed the




                                       10
presence of blood and testified that DNA extracted from the carpet was a match to

DNA extracted from Weyrick’s body.

      Finally, there is evidence that Boldon attempted to destroy evidence to

conceal his guilt. Surveillance video shows a man with Boldon’s coloring and a

tattoo on his shoulder purchasing a Walmart water bottle like the Walmart water

bottle found in the Renaissance Village parking lot to which the accelerant

detection dog alerted. The receipt for the transaction shows the sale occurred half

an hour before the fire began. Also, Officer Smith testified that the carpet in

Boldon’s apartment had been cleaned in an attempt to conceal the bloodstains. A

clean-up effort is also referenced in the jailhouse letter that is the subject of

Boldon’s third issue.

      Boldon contends that the State’s failure to prove motive and HPD’s failure

to find the murder weapon render the evidence insufficient. But motive is not an

element of murder and, therefore, is not required for a conviction. See Temple, 390

S.W.3d at 360; Mays v. State, 318 S.W.3d 368, 381 (Tex. Crim. App. 2010).

Similarly, the discovery of a murder weapon is not required for a conviction. See

Temple, 390 S.W.3d at 363 (holding evidence was legally sufficient to support

murder conviction although murder weapon was never recovered).

      Viewing this evidence in the light most favorable to the verdict, we conclude

that a rational juror could have found that Boldon intentionally or knowingly

                                        11
caused Weyrick’s death or intended to cause her death and committed an act

clearly dangerous to human life that caused her death. Accordingly, we hold the

evidence was legally sufficient to convict Boldon. See Fountain v. State, 401

S.W.3d 344, 355 (Tex. App.—Houston [14th Dist.] 2013, pet. ref’d) (holding

evidence of defendant’s proximity to complainant was legally sufficient to support

murder conviction where, in addition to other facts, defendant was last-known

person to see child alive and child was in defendant’s care night before and day of

child’s disappearance); Torres v. State, 343 S.W.3d 297, 302 (Tex. App.—Eastland

2011, pet. ref’d) (holding that circumstantial evidence alone was legally sufficient

to convict the defendant in part because law enforcement found the complainant’s

DNA on the defendant’s clothing and gun); Winningham v. State, 334 S.W.3d 289,

308–09 (Tex. App.—Fort Worth 2010, pet. ref’d) (holding evidence legally

sufficient to support murder conviction where complainant was found burned and

wrapped in blue tarp, Medical Examiner testified complainant died from gunshot

wounds and was dead before being set on fire, receipt from Academy sports store

near defendant’s apartment listing two purchases, a tarp and a rope, was found near

body, rope was found in Academy sports bag in defendant’s apartment, and

complainant’s blood was found in defendant’s truck); Wilson v. State, 195 S.W.3d

193, 203–05 (Tex. App.—San Antonio 2006, no pet.) (holding evidence was

legally sufficient to support murder conviction where, in addition other evidence,

                                        12
neighbor’s testimony placed vehicle of same make and model as defendant’s in

complainant’s driveway at approximate time of murder and defendant’s cell-phone

records indicated defendant was traveling across town to within a few miles of

complainant’s home).

      We overrule Boldon’s first and second points of error.

II.   Admission of the Jailhouse Letter

      In his third point of error, Boldon contends the trial court erred in admitting

a letter the State contends he wrote while confined in Harris County Jail.

Specifically, Boldon contends the letter was not properly authenticated under

Texas Rule of Evidence 901(a). See TEX. R. EVID. 901(a).

A.    Standard of Review

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

discretion. Tienda v. State, 358 S.W.3d 633, 638 (Tex. Crim. App. 2012). Our

review is deferential. Id. We will not interfere with the trial court’s ruling if the

ruling is at least within the zone of reasonable disagreement. Id.

B.    Applicable Law

      Under Texas Rule of Evidence 104(a), whether to admit evidence at trial is a

preliminary question to be decided by the trial court. Id. at 637–38. A bedrock

condition of admissibility is the relevance of the evidence to an issue in the case.

Id. at 638 (citing TEX. R. EVID. 402).        Evidence is not relevant if it is not

                                         13
authentically what its proponent claims it to be. Id. Texas Rule of Evidence

901(a) requires the proponent to make a threshold showing that the evidence is

what the proponent purports it to be. TEX. R. EVID. 901(a). Whether the proponent

has crossed this threshold is one of the preliminary questions of admissibility

contemplated by Rule 104(a). Tienda, 358 S.W.3d at 637–38. The trial court

should admit proffered evidence on the introduction of evidence sufficient to

support a finding of authenticity. Id. (citing TEX. R. EVID. 104(b)). The ultimate

question, whether the evidence is what the proponent claims, then becomes a

question for the fact finder. Id. In performing its Rule 104 gate-keeping function,

the trial court itself need not be persuaded that the proffered evidence is authentic.

Id. The preliminary question for the trial court is simply whether the proponent

has supplied sufficient facts to support a reasonable jury determination that the

evidence is what the proponent claims. Id. (citing Druery v. State, 225 S.W.3d

491, 502 (Tex. Crim. App. 2007)).

      Evidence may be authenticated in a number of ways, including a showing of

distinctive internal characteristics: appearance, contents, substance, internal

patterns, or other distinctive characteristics, taken in conjunction with

circumstances. TEX. R. EVID. 901(b)(4); see also Gardner v. State, 306 S.W.3d

274, 293 (Tex. Crim. App. 2009) (holding proponent sufficiently authenticated

robe as that worn by complainant in murder prosecution where paramedic testified

                                         14
she recognized distinctive jagged marks near front zipper caused by paramedic’s

use of trauma shears to remove robe from complainant and blood stains near neck).

C.    Analysis

      We conclude the trial court did not abuse its discretion in admitting the

jailhouse letter because the record reveals sufficient facts to support a reasonable

jury’s determination that the letter was in fact a letter written by Boldon. Boldon

was in the jail in which the letter was found, and the writer identified himself as

Boldon. The letter indicated Boldon’s jail cell as the return address, and bore

Boldon’s SPN—a unique number assigned to Boldon to identify him within Harris

County Jail. Additionally, the envelope containing the letter was addressed to

Boldon’s mother at Boldon’s parents’ house, and the letter was written to a woman

who received mail at Boldon’s apartment.        Finally, the letter discussed facts

seemingly related to Weyrick’s murder.

      Boldon argues the State failed to authenticate the letter in part because the

State failed to present testimony from a witness with personal knowledge or

handwriting analysis evidence.        While Texas Rule of Evidence 901(b)

acknowledges that testimony from a witness with knowledge and handwriting

analysis are means by which a proponent can authenticate evidence, neither of

these is required. See TEX. R. EVID. 901(b)(1)–(2). Moreover, absent evidence of

tampering or other fraud, the mere possibility that someone other than Boldon

                                         15
could have written the letter will not prevent us from finding that a reasonable

juror could evaluate whether the evidence was what the State claimed. See Druery,

225 S.W.3d at 503. We hold that the trial court did not err in admitting the letter.

See id. (defendant’s letter was properly authenticated where the defendant was in a

position to have mailed the letter from jail, the writer identified himself as the

defendant, and the letter bore defendant’s fingerprints and was addressed to the

defendant’s cousin, discussed facts known to the defendant about his case, and

stated the return address was false because the writer did not want jail staff to read

the letter); Flores v. State, 299 S.W.3d 843, 856–57 (Tex. App.—El Paso 2009,

pet. ref’d) (holding State properly authenticated letter where letter was intercepted

from defendant’s mail, was signed with defendant’s name, was addressed and sent

to a woman with whom defendant had a personal relationship, indicated jail in

which defendant was confined as return address, and bore defendant’s SPN

number).

       We overrule Boldon’s third point of error.

III.   Motion to Suppress

       In his fourth point of error, Boldon contends the trial court erred in denying

his motion to suppress a buccal swab of his cheek, the blood-stained carpet

samples on which Head confirmed the presence of Weyrick’s DNA, and Boldon’s

mail. Boldon’s motion to suppress challenged the affidavit supporting the search

                                         16
warrant for lack of probable cause.        Boldon contends the trial court erred in

denying his motion because it never reviewed the affidavit.

      “When a defendant objects to the court admitting evidence on the ground

that it was unlawfully seized and the State relies on a search warrant, in the

absence of a waiver, reversible error will result unless the record reflects that the

warrant was exhibited to the trial judge.” Cannady v. State, 582 S.W.2d 467, 469

(Tex. Crim. App. [Panel Op.] 1979); see Miller v. State, 736 S.W.2d 643, 648

(Tex. Crim. App. 1987) (en banc) (holding that once warrant and supporting

affidavit are produced by State and exhibited to trial court, it is the responsibility of

the defendant to see that the warrant and the supporting affidavit are in the record

if they are to be reviewed on appeal). “[I]f defense counsel desires a review of the

search warrant and affidavit on appeal, it is necessary for him to offer for the

record on a bill of exception copies of the search warrant and of the affidavit.”

Cannady, 582 S.W.2d at 469.

      The record reflects that the trial court reviewed both the search warrant and

the supporting affidavit. Because the trial court reviewed the affidavit, Boldon was

required to ensure a copy of the affidavit was included in the record in order to

preserve his challenge to the affidavit for appellate review. See id. The record

does not include a copy of the affidavit. Accordingly, we hold Boldon failed to

preserve this issue for our review. See id.; Miller, 736 S.W.2d at 648.

                                           17
      We overrule Boldon’s fourth point of error.

                                   Conclusion

      We affirm the trial court’s judgment.




                                                        Rebeca Huddle
                                                        Justice


Panel consists of Chief Justice Radack and Justices Bland and Huddle
Do not publish. TEX. R. APP. P. 47.2(b).




                                           18
