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                                            OPINION

                                        No. 04-08-00668-CR

                                          Darryl WELLS,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                     From the 379th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2007-CR-2049
                            Honorable Bert Richardson, Judge Presiding

Opinion by:      Sandee Bryan Marion, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Rebecca Simmons, Justice

Delivered and Filed: April 14, 2010

AFFIRMED

           A jury found appellant Darryl Wells guilty of the murder of Tim Davila and assessed

punishment at sixty-five years’ confinement. On appeal, appellant asserts the trial court erred in (1)

failing to grant his motion for speedy trial, (2) admitting a deceased witness’s statements through the

decedent’s wife’s testimony, (3) admitting a deceased witness’s statement identifying appellant as

a suspect through a police officer’s testimony, and (4) disallowing an accomplice as a matter of law
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instruction in the jury charge. Additionally, appellant asserts the evidence is legally and factually

insufficient to support the jury’s verdict. We affirm.

                                    RIGHT TO SPEEDY TRIAL

        In his first issue on appeal, appellant argues the trial court erred in failing to grant his motion

for speedy trial. See U.S. CONST . amend. VI, XIV; TEX . CONST . art. I, § 10; see also Barker v.

Wingo, 407 U.S. 514, 515 (1972) (Sixth Amendment right to speedy trial under federal constitution

applies to states through Fourteenth Amendment). Appellant points out that the police department

transferred Detective Robert Moffitt—the detective originally assigned to the case—to another unit

and a “new officer sat on the case since he knew appellant was incarcerated.” Appellant argues law

enforcement (1) failed to question him even though he waived extradition and (2) exhibited bad faith

by waiting for his release from an Ohio prison and his return to Sulphur Springs, Texas, pursuant to

a detainer before arresting and indicting him. As a result, appellant claims he was not afforded a

speedy trial. This, appellant argues, resulted in the absence of a key witness, Marco Toledo, who

died of unrelated causes and thus was unavailable for cross-examination by appellant. For these

reasons, appellant concludes his conviction should be reversed.

                                          A. The Barker Test

        The speedy trial guarantee is designed to minimize the possibility of lengthy incarceration

prior to trial, to reduce the lesser, but nevertheless substantial, impairment of liberty imposed on an

accused while released on bail, and to shorten the disruption of life caused by arrest and the presence

of unresolved criminal charges. United States v. MacDonald, 456 U.S. 1, 8 (1982). However, the

right to a speedy trial does not protect a defendant from all effects flowing from a delay before trial.


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United States v. Loud Hawk, 474 U.S. 302, 311 (1986). For example, it does not limit the length of

a preindictment criminal investigation even though “the [suspect’s] knowledge of an ongoing

criminal investigation will cause stress, discomfort, and perhaps a certain disruption in normal life.”

Id. at 312 (quoting MacDonald, 456 U.S. at 9).

       To determine whether the State violated appellant’s right to a speedy trial under the state or

federal constitution, we weigh and balance four factors: (1) the length of the delay; (2) the reason

for the delay; (3) the assertion of the right; and (4) the prejudice to the accused. See Barker, 407

U.S. at 530 (creating balancing test for reviewing speedy trial claims under federal constitution);

Cantu v. State, 253 S.W.3d 273, 280 n.16 (Tex. Crim. App. 2008) (although speedy trial right under

Texas Constitution exists independently of federal guarantee, claims of denial of State speedy trial

right are analyzed under same four Barker factors). Once the Barker test is triggered, we analyze

the speedy trial claim by first weighing the strength of the Barker factors and then balancing their

relative weights in light of the conduct of both the prosecution and the defendant. Cantu, 253

S.W.3d at 281. None of the Barker factors is a necessary or sufficient condition to finding a speedy

trial violation. Id. Rather, the factors are related and should be evaluated in conjunction with any

other relevant considerations. Id. In reviewing the trial court’s ruling, we review the legal

components de novo and review the factual components for an abuse of discretion. See id. at 282.

1. Length of Delay

       The Barker test is triggered by a delay that is unreasonable enough to be “presumptively

prejudicial.” Doggett v. United States, 505 U.S. 647, 652 n.1 (1992); Cantu, 253 S.W.3d at 281.

A delay approaching one year from formal accusation or arrest of the defendant until trial has


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generally been found to be presumptively prejudicial. Celestine v. State, No. 14-08-00766-CR, 2009

WL 3365893, at *3 (Tex. App.—Houston [14th Dist.] Sept. 10, 2009, no pet.); see Shaw v. State,

117 S.W.3d 883, 889 (Tex. Crim. App. 2003); see also United States v. Marion, 404 U.S. 307, 313

(1971) (delay is measured from time of formal accusation or arrest to time defendant is brought to

trial). Appellant agues “more than three years elapsed before [he] was ever indicted and six years

since the death of Tim Davila by the time trial actually came to fruition.” The State, however, asserts

any speedy trial analysis should not begin until the State executed appellant’s arrest warrant and he

was taken into custody. We agree with the State.

       The shooting death of Tim Davila occurred on January 26, 2003. On February 26, 2003,

appellant was arrested in Cleveland, Ohio, on unrelated charges. While serving his time in Ohio,

appellant alleges he waived extradition to Texas, which “would have made his return to Texas very

easy.” However, in Texas, the “mere waiver of extradition does not rise to the level of an assertion

of the right to a speedy trial.” Burton v. State, 805 S.W.2d 564, 573 (Tex. App.—Dallas 1991, pet.

ref’d). Similarly, we do not believe that mere waiver of extradition starts the clock for purposes of

measuring the length of the delay under Barker. As the United States Supreme Court has explained,

“either a formal indictment or . . . the actual restraints imposed by arrest and holding to answer a

criminal charge . . . engage the particular protections of the speedy trial provision of the Sixth

Amendment.” Marion, 404 U.S. at 320; Cantu, 253 S.W.3d at 280 n.15. Therefore, it is not enough

that an accused voluntarily submit his person to restraint and holding by the State by waiving

extradition while under confinement in another jurisdiction on other charges; rather, the invocation

of the right to a speedy trial requires either actual restraint by the State or formal accusation. See


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Marion, 404 U.S. at 320; Dickerson v. Guste, 932 F.2d 1142, 1144 (5th Cir. 1991) (detainer does

not constitute actual restraint for speedy trial considerations); see also United States v. Garner, 32

F.3d 1305, 1309-10 (8th Cir. 1994) (arrest on one charge does not trigger right to speedy trial on

another charge filed after arrest).

        Here, Bexar County officials executed appellant’s arrest warrant and took appellant into

custody on December 5, 2006. Appellant was then indicted on March 1, 2007. Appellant’s trial,

however, was not until August 2008. Thus, for purposes of appellant’s speedy trial claim, we

consider only the time period from appellant’s arrest in December 2006 until his trial in August

2008—a delay of approximately twenty months. This delay exceeds one year and is therefore

presumptively prejudicial—a conclusion the State does not dispute—and we proceed to the

remaining Barker factors.

2. Reason for Delay

        Once it has been determined that a presumptively prejudicial delay has occurred, the State

bears the initial burden of providing a justification for the delay. Emery v. State, 881 S.W.2d 702,

708 (Tex. Crim. App. 1994); State v. Rangel, 980 S.W.2d 840, 843 (Tex. App.—San Antonio 1998,

no pet.). Different reasons for the delay are assigned different weights: an intentional delay for

tactical reasons is weighed heavily against the State; a neutral reason, such as overcrowded courts,

is weighed less heavily against the State; a valid reason is not weighed against the State at all; and

delay attributable to the defendant may constitute a waiver of the speedy trial claim. State v. Munoz,

991 S.W.2d 818, 822 (Tex. Crim. App. 1999).




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       Here, the State points out that during the twenty-month period it filed only one motion for

continuance, which was due to the unavailability of a key witness who was out of the country and

thus unable to testify. Additionally, the State argues “appellant’s difficulties with his appointed

counsel caused delays in his case coming to trial.” Our review of the record reveals the trial court

first appointed an attorney to represent appellant on December 15, 2006—ten days after Bexar

County officials took appellant into custody. On February 16, 2007, appellant filed his first motion

to dismiss appointed counsel, stating appellant “has already received ineffective assistance of

counsel.” On March 30, 2007, appellant filed a second motion to dismiss appointed counsel, stating

there existed “a great conflict of interest . . . .” On May 22, 2007, defense counsel filed a motion to

withdraw, which the trial court subsequently granted. On July 10, 2007, the trial court appointed

appellant a second attorney. On February 26, 2008, appellant’s second attorney filed a motion to

withdraw.1 The trial court granted the motion and, on the same day, appointed appellant a third

attorney: James Tocci. Then, at a June 16, 2008, pretrial hearing, appellant argued before the court

his previously-filed motions to dismiss for lack of speedy trial. The trial court informed appellant

“it might have something to do with the fact that you have filed grievances or made accusations

against your lawyers . . . .” The trial court then concluded appellant was the primary cause of the

delays and explained to appellant,

       [I]n all fairness to the lawyers who have been appointed, they are entitled to have
       time to get ready for trial. They cannot be expected to go to trial even though you
       may be familiar with the facts of the case, they have an obligation and a duty to
       review the State’s file, especially in light of the charges . . . .



       1
           …   The record indicates the attorney withdrew because of a heavy caseload.

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        Our review of the record supports the State’s claim that a substantial portion of the delay was

attributable to appellant. But for appellant’s complaints against two of his attorneys and a

subsequent motion to withdraw by his first attorney, there would have been no need for additional

time to allow appellant’s new attorneys to prepare. Thus, the State has met its initial burden of

providing a justification for the twenty-month delay: it was attributable to appellant. We therefore

conclude that this delay tips the scales against appellant.

3. Assertion of the Right

        The third Barker factor requires a determination of whether the defendant asserted his right

to a speedy trial. Barker, 407 U.S. at 531; Munoz, 991 S.W.2d at 825 (both stating defendant must

assert or demand his right to speedy trial). A defendant’s assertion of that right is entitled to strong

evidentiary weight when determining whether the defendant was deprived of his right to a speedy

trial. Barker, 407 U.S. at 531-32; Zamorano v. State, 84 S.W.3d 643, 651 (Tex. Crim. App. 2002).

        Appellant asserts he “signed a waiver of extradition on February 26, 2003 based on the

[arrest] warrant issued February 3, 2003.” As stated earlier, however, the “mere waiver of

extradition does not rise to the level of an assertion of the right to a speedy trial.” Burton, 805

S.W.2d at 573. Nonetheless, after a review of the record, we conclude appellant properly asserted

his right to a speedy trial, and, therefore, this factor weighs in his favor.

4. Prejudice

        The fourth factor is prejudice to the defendant, which should be assessed in light of

defendant’s interests. Barker, 407 U.S. at 532; Munoz, 991 S.W.2d at 826. These interests are (1)

preventing oppressive pretrial incarceration, (2) minimizing the anxiety and concern of the accused,


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and (3) limiting the possibility that the defense will be impaired. Barker, 407 U.S. at 532; Munoz,

991 S.W.2d at 826. Of these interests, the most important is protecting a defendant’s ability to

adequately prepare his case because compromise of this interest “skews the fairness of the entire

system.” Munoz, 991 S.W.2d at 826 (quoting Barker, 407 U.S. at 532). The defendant has the

burden to make some showing of prejudice, although a showing of actual prejudice is not required.

Id. When the defendant makes a prima facie showing of prejudice, the burden shifts to the State to

show that the defendant suffered “no serious prejudice beyond that which ensued from the ordinary

and inevitable delay.” Id. (quoting Ex parte McKenzie, 491 S.W.2d 122, 123 (Tex. Crim. App.

1973)).

          Appellant asserts he was “severely” prejudiced because a key witness, Marco Toledo, died

before trial. Appellant argues the State profited from the delay because the trial court admitted into

evidence statements made by Toledo to other witnesses, even though appellant had no opportunity

to cross-examine Toledo. Appellant also contends he was prejudiced because the testimony of a

neighbor was unavailable.

          In order to demonstrate prejudice due to the unavailability of a witness, a defendant must,

among other things, present proof that the witness would have benefitted his defense. Harrison v.

State, 282 S.W.3d 718, 722 (Tex. App.—Amarillo 2009, no pet.) Here, appellant has offered no

proof that either Toledo or the neighbor would have benefitted his defense. Accordingly, the fourth

Barker factor weighs against appellant.




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                                 B. Balancing the Barker Factors

       While the presumption of an unreasonable delay and the assertion of a right to a speedy trial

support appellant’s position, the State showed and the record supports that the delay after his arrest

by Bexar County officials was mostly attributable to appellant. Although asserting a right to a

speedy trial carries strong evidentiary weight in determining whether the appellant was deprived of

the right, the other factors and circumstances weigh against him. Balancing these factors, we

conclude the trial court did not err in denying appellant’s motion for speedy trial.

                       TESTIMONY OF CATHERINE HERNANDEZ

       In his second issue on appeal, appellant argues the trial court erred in admitting testimony

from Toledo’s wife, Catherine Hernandez. Hernandez testified that on December 4, 2007, Toledo

died of heart disease. She then relayed the events of the evening of the murder: Hernandez was at

home with Toledo when appellant, an acquaintance of Toledo, came to their apartment; she left the

apartment to go to the laundromat; after finishing the laundry she went to her mother’s home to pick

up her children, at which time she was told there had been a shooting at her apartment; upon

returning to her apartment, police were present as well as her husband, who had zip ties on his wrists

and duct tape on his ankles. Her testimony then relayed several statements made to her by Toledo;

among other things, the testimony identified appellant as (1) the man who had a gun at the time

Davila was shot and (2) one of two men who tied Toledo up and dragged him on his stomach into

a back room. At trial, appellant raised hearsay objections to Hernandez’s testimony, which the trial

court denied. On appeal, appellant asserts this testimony was improper hearsay and the excited

utterance exception does not apply.


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       Hearsay is a statement, other than one made by the declarant while testifying at a trial or

hearing, offered in evidence to prove the truth of the matter asserted. TEX . R. EVID . 801(d). In order

for hearsay to be admissible, it must fit into an exception provided by a statute or the Texas Rules

of Evidence. TEX . R. EVID . 802. One such exception is for an excited utterance. An excited

utterance is a “statement relating to a startling event or condition made while the declarant was under

the stress of excitement caused by the event or condition.” TEX . R. EVID . 803(2); Salazar v. State,

38 S.W.3d 141, 154 (Tex. Crim. App. 2001). The basis for the excited utterance exception is a

psychological one—namely, the fact that when a person is in the instant grip of violent emotion,

excitement, or pain, that person ordinarily loses the capacity for reflection necessary for fabrication,

and the truth will come out. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). In other

words, the statement is trustworthy because it represents an event speaking through the person rather

than the person speaking about the event. Id.; Ricondo v. State, 475 S.W.2d 793, 796 (Tex. Crim.

App. 1971).

       We review a trial court’s determination of whether evidence is admissible under the excited

utterance exception to the hearsay rule for an abuse of discretion. Wall v. State, 184 S.W.3d 730,

743 (Tex. Crim. App. 2006). In determining whether a hearsay statement is admissible as an excited

utterance, the court may consider as factors the time elapsed and whether the statement was in

response to a question. Salazar, 38 S.W.3d at 154. The critical determination, however, is whether

the declarant was still dominated by the emotions, excitement, fear, or pain of the event at the time

of the statement. Id. Stated differently, a reviewing court must determine whether the statement was




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made “under such circumstances as would reasonably show that it resulted from impulse rather than

reason and reflection.” Fowler v. State, 379 S.W.2d 345, 347 (Tex. Crim. App. 1964).

        Appellant cites First Southwest Lloyds Insurance Co. v. MacDowell, 769 S.W.2d 954 (Tex.

App.—Texarkana 1989, writ denied), for the proposition that a “statement that is simply a narrative

of past acts or events, as distinguished from a spontaneous utterance, does not qualify as an excited

utterance regardless of how soon after the event . . . it is made.” Id. at 959. In that case, the trial

court refused to allow a testifying witness to recount what an eyewitness to a fire had told him. See

id. The appellate court affirmed, noting that the eyewitness’s remarks to the testifying witness

“constituted a narrative account, given after he had returned to the fire scene after chasing the fleeing

vehicle . . . .” Id.

        We first note several distinguishing factors between First Southwest and the case at hand.

First, the eyewitness in First Southwest left the scene of the crime and returned some time later to

give his statement to an investigator. Id. Here, Toledo never left the scene and was telling his wife

what had happened; that is, unlike the First Southwest witness, Toledo was not responding to

questions from an investigator. Second, the First Southwest eyewitness was purely an eyewitness

without any other meaningful involvement. See id. Toledo, on the other hand, was present during

the murder, was restrained by the suspects, and still had duct tape across his ankles and zip ties on

his wrists at the time he made the statements to his wife. Third, Hernandez testified that at the time

Toledo spoke to her he was “completely out of it; just rambling on and didn’t make sense at the

beginning. And then [he was] really just nervous and scared. Really scared.”




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        We conclude the trial court did not abuse its discretion by admitting under the excited

utterances exception Hernandez’s testimony about what Toledo told her shortly after the murder

occurred. First, it cannot reasonably be disputed that Toledo’s statement related to a startling event.

See TEX . R. EVID . 803(2). Second, Hernandez testified Toledo was “completely out of it,”

“rambling,” and “really . . . nervous and scared,” and therefore, her testimony supports the contention

that, at the time Toledo made the statements, he was still under the stress of excitement caused by

the event. See id.

                            LEGAL AND FACTUAL SUFFICIENCY

        In his fifth and sixth issues on appeal, appellant argues the evidence is both legally and

factually insufficient to support his murder conviction. Specifically, appellant contends there is no

evidence he shot Tim Davila; therefore, no rational trier of fact could have found beyond a

reasonable doubt that he was the shooter, and his conviction was against the great weight and

preponderance of the evidence.

        We review the sufficiency of the evidence under the appropriate standards of review. See

Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (legal sufficiency); Dewberry v. State, 4 S.W.3d

735, 740 (Tex. Crim. App. 1999) (same); Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App.

2006) (factual sufficiency); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996) (same).

The standard of review is the same in both direct and circumstantial evidence cases. Kutzner v.

State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). The jury, as trier of fact, is the sole judge of

the credibility of the witnesses and the weight to be given to their testimony; therefore, reconciliation




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of any conflicts in the evidence is within the exclusive province of the jury. Mosley v. State, 983

S.W.2d 249, 254 (Tex. Crim. App. 1998).

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

of an individual or intends to cause serious bodily injury and commits an act clearly dangerous to

human life that causes the death of an individual. TEX . PENAL CODE ANN . § 19.02(b) (Vernon

2003). Also, 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). A person is criminally responsible for the conduct of another if “acting with intent to

promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts

to aid the other person to commit the offense . . . .” Id. § 7.02(a)(2).

       Here, ample evidence supported the State’s theory that on January 26, 2003, appellant was

criminally responsible for the shooting death of Tim Davila. Appellant admitted to the police to

being in the apartment when the shooting took place. Catherine Hernandez, who lived at the

apartment where the shooting occurred, identified appellant and stated she saw him enter her

apartment the evening of the shooting before she left for several hours to do laundry. Hernandez

further testified that her late husband—Marco Toledo, who was present when the shooting

occurred—told her (1) appellant had a gun at the time of the shooting and (2) appellant and another

man tied Toledo’s hands with zip ties and his feet with duct tape and dragged him into another room.

Police photographs confirm Toledo had zip ties around his wrists, duct tape on his ankles, and

injuries consistent with rug burns on his stomach and knees.




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       Maurice Pineda, a friend of Tim Davila and an acquaintance of Toledo, set up the sale of

marijuana from Davila to Toledo. Pineda testified two black men, one of whom he identified as

appellant, were in Toledo’s apartment when he and Davila arrived.               Davila had with him

approximately fifty pounds of marijuana. Upon entering the apartment to make the sale, Pineda

stated one of the two black men ran at him with what Pineda thought was a gun. Pineda shouted to

Davila and then dropped to the floor for cover. He heard several shots fired and kept his eyes closed

pretending to be dead. After a short time, he heard people leaving the apartment. He then heard

Toledo—whom Pineda subsequently discovered was tied up in another room—say that they had

gone. When he opened his eyes, Pineda saw Davila lying on the floor next to him shot in the head.

       Six hours later, police arrested appellant and Donald Evans after a traffic stop in Sulphur

Springs—a five to six hour drive from San Antonio. During a search of the vehicle, police found

large amounts of cash, forty-five pounds of marijuana, duct tape, zip ties, and various firearms,

including the murder weapon.

       At trial, it was for the jury to determine the credibility of the witnesses and the weight to give

their testimony and the evidence adduced. We conclude the evidence was legally and factually

sufficient to sustain the conviction based on the State’s theory that appellant and Evans worked

together to steal Davila’s marijuana, an act during the course of which either appellant or Evans shot

and killed Davila.

                          TESTIMONY OF DETECTIVE MOFFITT

       In response to a very brief and narrow line of questioning by the State, Detective Moffitt

testified that Toledo identified appellant as a suspect. In his third issue on appeal, appellant argues


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the trial court erred in admitting testimony from Detective Moffitt regarding Toledo’s identification

of appellant because its admission violated appellant’s right of confrontation under both the federal

constitution and the Texas Rules of Evidence. The State does not dispute that Toledo’s statement

was an out-of-court testimonial statement or that Toledo was never subjected to cross-examination.

Instead, the State argues appellant left a false impression during his earlier cross-examination of

another detective, Ramiro Alvear, the detective who investigated the murder the evening it took

place:

         Q:    Did Marco Toledo ever tell you that he saw [appellant] shoot anybody?

         A:    No, sir, he did not.

         Q:    And it’s true that during the investigation the officers learned that Marco
               Toledo was not even present when the shooting occurred. Isn’t that true?

         A:    No, sir. I wasn’t aware of that.

         Q:    So you’re not aware of that?

         A:    No, sir.

         Q:    But the night this happened, Marco Toledo never told you [appellant] shot
               anybody.

         A:    That is correct.

The State asserts appellant’s cross-examination of Detective Alvear opened the door for the State

to correct a false impression—namely, that Toledo never told anyone appellant was the shooter, and

moreover, Toledo did not place appellant at the scene the night of the shooting. The State points out

it attempted to correct the false impression during its redirect examination of Detective Alvear, but

appellant lodged an objection under Crawford v. Washington, 541 U.S. 36 (2004). After a lengthy


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discussion between the trial court and the attorneys, the State agreed to withdraw the line of

questions to Detective Alvear intended to correct the false impression. Therefore, the State argues,

it was entitled to correct the false impression during its examination of Detective Moffitt.

          The Sixth Amendment to the United States Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right to . . . be confronted with the witnesses against him

. . . .” U.S. CONST . amend. VI. The Confrontation Clause’s central concern is to ensure the

reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the

context of an adversarial proceeding before the trier of fact. Lilly v. Virginia, 527 U.S. 116, 123-24

(1999).     Testimonial statements of witnesses absent from trial are admissible over a Sixth

Amendment Confrontation Clause objection only where the declarant is unavailable and only where

the defendant has had a prior opportunity to cross-examine. Crawford, 541 U.S. at 59. However,

otherwise inadmissible evidence may be admitted if the party against whom the evidence is offered

“opens the door,” but the party offering the evidence may not “stray beyond the scope of the

invitation.” Schutz v. State, 957 S.W.2d 52, 71 (Tex. Crim. App. 1997) (quoting Bush v. State, 773

S.W.2d 297, 301 (Tex. Crim. App. 1989)). For instance, a party may open the door to the admission

of otherwise inadmissible evidence to correct a false impression for which it was responsible.

Renteria v. State, 206 S.W.3d 689, 697 (Tex. Crim. App. 2006). This exception extends to the

admission of evidence that may otherwise violate the Confrontation Clause. See Goodman v. State,

302 S.W.3d 462, 473 (Tex. App.—Texarkana 2009, pet. filed) (because defendant opened door to

admission of testimonial evidence, no Confrontation Clause violation occurred); McClenton v. State,

167 S.W.3d 86, 94 (Tex. App.—Waco 2005, no pet.) (trial court properly admitted officer’s


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testimony relating co-defendant’s testimonial statement where defendant opened door). Because we

review de novo whether a trial court’s admission of testimony violates Confrontation Clause rights,

in this case we independently review whether appellant’s cross-examination of Detective Alvear

opened the door to the State’s questions about Toledo’s statements to Detective Moffitt. See Lilly,

527 U.S. at 136-37.

       We hold defense counsel’s cross-examination of Detective Alvear called into question

whether Toledo had affirmatively implicated appellant in the shooting. By asking Detective Alvear

(1) if Toledo had told him whether Toledo saw appellant shoot anybody, and (2) whether officers

had learned Toledo “was not even present when the shooting occurred,” defense counsel painted the

picture that Toledo never implicated appellant in the shooting. Because these questions cast doubt

on whether Toledo had named appellant as the shooter as well as whether Toledo had affirmatively

implicated appellant, appellant created a false impression for the jury. Thus, appellant opened the

door to the admission of questions regarding whether Toledo had identified appellant as a suspect,

and the trial court did not err in allowing the State to ask Detective Moffitt the narrowly-tailored

questions regarding the implication of appellant by Toledo. Because appellant opened the door to

Detective Moffitt’s testimony regarding Toledo’s statements, its admission did not violate

appellant’s right of confrontation.

                                         JURY CHARGE

       In his fourth issue on appeal, appellant argues the trial court erred when it refused to include

an accomplice as a matter of law instruction in the jury charge regarding Maurice Pineda. Appellant

claims Pineda’s “admitted involvement in this drug deal would have clearly implicated [him] as a


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party to the offense, and therefore an accomplice as a matter of law because he participated with

another before, during, or after the crime.” Even assuming the trial court erred in not including the

requested instruction, we conclude appellant was not harmed.

         The degree of harm necessary for reversal depends on whether the error was preserved.

Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Error properly preserved by an

objection to the charge will require reversal as long as the error is not harmless. Id. This means any

harm, regardless of degree, is sufficient to require reversal. Id. Here, because appellant properly

preserved the alleged charge error, we must determine whether there was any harm, regardless of

degree. Appellant argues that the error caused some harm because Pineda’s testimony was the

“glue” that held the State’s case together. We disagree.

         Before a conviction may rest upon an accomplice witness’s testimony, that testimony must

be corroborated by independent evidence tending to connect the accused with the crime. TEX . CODE

CRIM . PROC. ANN . art. 38.14 (Vernon 2005); Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App.

2007).       To determine whether accomplice testimony is sufficiently corroborated under the

accomplice-witness rule, we must eliminate the accomplice testimony from consideration and then

examine the remaining portions of the record to see if there is any evidence that tends to connect the

accused with the commission of the offense. Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim.

App. 2001). Therefore, we exclude Pineda’s testimony2 and look to other corroborating evidence

to determine if it connects appellant with the offense. See id. (corroborating evidence need not be




         2
          … Pineda testified he thought one of the two black men who ran at him held a gun, but he did not identify
appellant as the man with the gun and he did not identify which of the two black men shot Davila.

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sufficient by itself to establish guilt); Cathey v. State, 992 S.W.2d 460, 462 (Tex. Crim. App. 1999)

(if combined weight of non-accomplice evidence tends to connect defendant to offense, then

requirement of Article 38.14 is fulfilled).

       Here, there was no dispute that appellant was present in the apartment when Davila was shot

and killed. Toledo—through Hernandez’s testimony—identified appellant as the man who had the

gun. Toledo also identified appellant as one of the two men who restrained him with zip ties and

duct tape and dragged him into another room. Within six hours of the shooting, police arrested

appellant and Evans after a traffic stop and found large amounts of cash, forty-five pounds of

marijuana, duct tape, zip ties, and the murder weapon. In sum, even if we exclude Pineda’s

testimony, the evidence is more than sufficient to connect appellant to the committed offense.

Therefore, appellant was not harmed by the omission of an accomplice-witness instruction.

                                          CONCLUSION

       We overrule each of appellant’s issues on appeal, and we affirm the trial court’s judgment.




                                                       Sandee Bryan Marion, Justice

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