Opinion issued April 2, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                               NO. 01-18-00450-CR
                           ———————————
                KEODDRICK DRESHON POLK, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


             On Appeal from the Criminal District Court No. 1
                         Tarrant County, Texas1
                    Trial Court Case No. 1484618D


                         MEMORANDUM OPINION




1
     The Texas Supreme Court transferred this appeal from the Court of Appeals for the
     Second District of Texas. See TEX. GOV’T CODE § 73.001 (authorizing transfer of
     cases between courts of appeals).
      Keoddrick Dreshon Polk was convicted by a jury of the offense of capital

murder for the shooting death of Breon Robinson.2 The trial court sentenced Polk to

life imprisonment without the possibility of parole. In two issues, Polk contends that

the trial court abused its discretion by admitting hearsay evidence over his

objections. We affirm.

                                    Background

      The facts surrounding Robinson’s shooting, the police investigation, and

Polk’s identification as the shooter are divided into two sections. First, we discuss

the unobjected to evidence. Next, we discuss the evidence that is the basis of Polk’s

hearsay challenges and appeal.

A.    Unobjected to testimony and other evidence

      Breon Robinson and his best friend, Jkeiston Levi, were driving to a Fort

Worth mall around 7:00 p.m. one evening when Levi received a call from an

acquaintance, Cedric Richardson, who was trying to sell a handgun. Robinson

already owned a gun; it was in his lap when Richardson called. But Robinson

decided that he wanted to buy Richardson’s gun and that he had enough cash on

hand to buy it immediately. The three agreed to meet at a nearby gas station.




2
      See TEX. PENAL CODE § 19.03(a)(2) (stating that person commits offense of capital
      murder if person intentionally commits murder in course of committing or
      attempting to commit, among other offenses, robbery).
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      Levi testified that he parked his silver Sebring alongside the gas pumps at the

agreed-to gas station. While Robinson stayed in the front passenger seat, Levi got

out and looked for Richardson. Levi saw Richardson walking toward him.

Richardson had another young man with him, but Levi did not know that person.

Levi got back into his driver’s seat. Richardson sat in the backseat behind Robinson,

and the man Levi did not yet know sat in the backseat behind Levi.

      In the courtroom, Levi identified Polk as the man who sat behind him that

evening. Levi described Polk sitting behind him and immediately demanding, “Give

me y’all’s s—!” while pointing a gun at Levi’s head. Levi testified that he threw the

cash he had toward the backseat. Polk turned the gun toward Robinson in the front

passenger seat and shot the gun. Robinson was shot in the back and immediately

started screaming. Robinson opened the front passenger door, ran from the Sebring

while still holding his gun, and collapsed. His gun landed nearby.

      Levi jumped out of the car and ran to Robinson. Polk collected the money that

Levi had thrown, and then Polk ran over and picked up Robinson’s dropped gun.

Levi lifted Robinson and put him in the backseat of the Sebring. Polk helped Levi

get Robinson into the backseat. Levi intended to drive Robinson to the hospital. He

called 9–1–1 as he drove.

      While Levi was driving to the hospital, he was shot multiple times by an

occupant of a car that had overtaken him. Levi was shot in his arm, neck, face, hand,


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and chest. Afterward, according to Levi, everything “just went black.” He regained

consciousness in an ambulance. He spent the next month in the hospital and required

multiple surgeries for his wounds.

      Levi testified that Polk shot Robinson at the gas station and shot him as he

drove to the hospital. On cross-examination, Levi was asked about his memory of

that night. Levi testified, “Well, I mean, the more I think about it, the more I

remember.” When pressed if his recollection might have been influenced by

information he has been told since the shooting, Levi rejected the implication, stating

about Polk, “He shot Breon [Robinson] and he shot me. . . . And he robbed us. . . . I

knew that when I was in the hospital without nobody telling me.”

      The police officers who investigated the shooting also testified. Officer P.

Hyder with the Fort Worth Police Department said that he was ending his patrol shift

when he received a report of a shooting at the gas station. On his way to the gas

station, he received a report of another shooting. Hyder changed course and went to

the scene of the second call. There, he found Levi’s Sebring pulled over a curb.

Inside, Levi was slumped over the central console, unconscious, and bleeding badly.

Robinson was lying unconscious in the backseat. Hyder applied a Halo Seal to Levi’s

chest to stop his blood loss. Hyder then checked on Robinson, but he was unable to

detect a heartbeat. Levi was taken by ambulance to the hospital. Robinson was

pronounced dead. Hyder and other officers investigated the scene around the


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Sebring. Hyder suspected the gas station shooting was related to this shooting

because the calls were so close in time and location.

      Officer Loud was one of the officers who responded to the gas station crime

scene. He received a call that gunshots had been fired at the gas station and arrived

there a little after 7:00 p.m. Loud saw no indications of an active conflict, but he did

find a pool of blood on the ground.

      Detective J. Cedillo also went to the gas station that evening. He and Detective

Martin determined that the gas station had surveillance cameras. They asked and

were granted permission to watch the videos. The videos showed a Sebring park at

the gas pump and a Jetta pull halfway into a handicapped parking space near the

entrance just after 7:00 p.m. The videos also showed the two young men from the

Jetta get into the backseat of the Sebring, the Sebring jerk slightly, all car doors open

quickly, and then all four men run from the car as Robinson held his back. Detective

Martin downloaded a copy of the videos for evidence.

      Detective K. Sullivan watched the videos the next day. He easily read several

digits on the Jetta’s license plate. He entered the information into a police database

and found a single match: a silver Jetta Volkswagen registered to J. Washington.

Sullivan discovered that Washington had a teen son named Keoddrick Polk. Sullivan

pulled a file photo of Polk and, he testified, “immediately recognized him as the

person who was driving the vehicle that pulled into the parking lot” and parked in


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the handicapped parking space. Sullivan confirmed that he was able to positively

identify Polk by comparing the surveillance videos to the file photo, before any

further investigation occurred. Detective Cedillo also testified that the surveillance

videos matched the photo of Polk.

      Sullivan was asked what he did next in his investigation. He testified that the

same day he watched the videos and determined that Polk’s photo matched, he went

to Polk’s mother’s home address. There, he saw a silver Jetta parked one house

down. Sullivan testified that the Jetta’s license plate number matched the one seen

in the gas station surveillance videos. Also, the Jetta had the same physical damage

as the Jetta on the videos, including a damaged front bumper clip and a missing

hubcap.

      Detectives Cedillo, Sullivan, and M. Anderson visited Levi in the hospital

about one week later. Anderson testified that his role was to administer a photo

lineup. The detectives used a “blind photo spread” procedure, in which one detective

selects photos of five individuals with similar characteristics as the suspect and

places them on a photo spread along with a photo of the suspect, and then a second

detective, who does not know which of the six in the photo spread is the suspect,

shows the photo spread to the complainant for identification of the perpetrator.

Detective Sullivan prepared the photo spread that contained Polk’s photo. Anderson,

without knowing which photo was Polk or whether Polk was accused of being the


                                          6
shooter or the other person involved, showed the photos to Levi. Anderson testified

that Levi identified Polk in the photo spread and stated that Polk was the person who

shot him and Robinson. Detective Sullivan testified that Levi was confident in his

identification.

         P. Wertheim is a latent fingerprint examiner with the Fort Worth Police

Department Crime Laboratory. He testified that he compared palm and fingerprints

taken from Polk during trial to prints taken from the Sebring and determined that

they were “made by the same person’s” hand.

         Detective Sullivan testified that he found a “fired PMC casing in the back

floorboard of the Sebring that matched the same fired PMC casing” found inside the

Jetta.

         Thus, there was witness testimony, video evidence, and physical evidence

linking Polk to Robinson’s shooting. The police linked Polk to the Jetta driven to the

scene where Robinson was shot by reading the license plate number from the videos

and determining that the car belonged to Polk’s mother. The Jetta at Polk’s mother’s

house had damage that matched the damage seen in the videos. The police pulled

photos of Polk and determined that they matched the person in the surveillance

videos. Separately, Levi identified Polk as the shooter from his hospital bed one

week after the shooting. Then, during his trial testimony, Levi again identified Polk




                                          7
as the shooter. Moreover, prints taken from the side of Levi’s car matched Polk’s

prints, and shell casings found in both cars also matched.

      We turn now to the evidence that Polk challenges in this appeal.

B.    Evidence Polk challenges as inadmissible hearsay

      In connection with Detective Sullivan’s testimony about going to

Washington’s house and seeing the matching Jetta, Sullivan testified that he knocked

on Washington’s front door, and a person named M. Wallace answered. Sullivan

was asked what information Wallace gave him. Polk objected that the question was

improperly eliciting hearsay testimony. His objection was overruled. Sullivan then

testified that Wallace said Polk would drive that Jetta.

      The second challenged evidence relates to cell tower records. Detective

Cedillo testified that he discovered a cell phone number linked to Polk. Through a

search warrant, Cedillo obtained cell records from the cellular provider. Polk

objected that the records were hearsay. His hearsay objection was overruled. Later,

FBI Special Agent M. Sedwick testified that he interpreted the cell record data and

determined when Polk’s cell phone made contact with various cell towers in the area.

Polk’s phone connected to a cell tower near the gas station at 6:29 p.m. on the day

of the shooting. Polk’s phone connected to another cell tower in that same area ten

minutes later, at 6:39 p.m. Sedwick explained that cell phones connect to cell towers




                                          8
near their locations. Thus, Polk’s phone was near the gas station about 30 minutes

before Robinson was shot.

      According to Sedwick, Polk’s phone did not contact any cell towers from 6:39

p.m until just after midnight. Sedwick testified that the lack of any contact indicates

that the phone was likely turned off or in airplane mode during those six hours.

Sedwick testified that nonuse for that length of time was not characteristic of Polk’s

daily use habits, as evidenced by the call records he analyzed.

      With this evidence in mind, we address whether Polk’s denied hearsay

objections on these two pieces of evidence support reversal of his capital murder

conviction.

                                Hearsay Objections

      Polk contends that the trial court committed reversible error by denying his

hearsay objections.

A.    Standard of review

      The Texas Rules of Evidence define hearsay as a statement, other than one

made by the declarant while testifying at the trial or hearing, offered into evidence

to prove the truth of the matter asserted. TEX. R. EVID. 801(d). Hearsay is generally

inadmissible, but there are exceptions. See, e.g., TEX. R. EVID. 802 (stating general

inadmissibility rule), 803 (providing 24 categories of evidence that are excepted




                                          9
from general rule), 804 (adding three additional exceptions for particular

circumstances in which declarant is unavailable).

      We review a trial court’s decision to admit evidence for an abuse of discretion.

Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003); Campos v. State, 317

S.W.3d 768, 777 (Tex. App.—Houston [1st Dist.] 2010, pet ref’d). A trial court

abuses its discretion when it acts without reference to guiding rules or principles or

acts arbitrarily or unreasonably. Galliford v. State, 101 S.W.3d 600, 604 (Tex.

App.—Houston [1st Dist.] 2003, pet. ref’d). We will affirm the trial court’s ruling if

it lies within the zone of reasonable disagreement. See Torres v. State, 71 S.W.3d

758, 760 (Tex. Crim. App. 2002). Moreover, “if the trial court’s evidentiary ruling

is correct on any theory of law applicable to that ruling, it will not be disturbed even

if the trial judge gave the wrong reason for [its] right ruling.” De La Paz v. State,

279 S.W.3d 336, 344 (Tex. Crim. App. 2009).

      The erroneous admission of a hearsay statement is non-constitutional error

that is subject to a harm analysis under Rule 44.2(b) of the Texas Rules of Appellate

Procedure. See TEX. R. APP. P. 44.2(b); Campos, 317 S.W.3d at 779. Under Rule

44.2, any non-constitutional error, defect, irregularity, or variance that “does not

affect substantial rights must be disregarded.” TEX. R. APP. P. 44.2(b); Infante v.

State, 404 S.W.3d 656, 663–64 (Tex. App.—Houston [1st Dist.] 2012, no pet.). “A

conviction should not be overturned for such error if this court, after examining the


                                          10
record as a whole, has fair assurance that the error did not influence the trial court or

had but a slight effect.” Campos, 317 S.W.3d at 779 (citing Johnson v. State, 43

S.W.3d 1, 4 (Tex. Crim. App. 2001)).

      In determining whether the jury’s decision was adversely affected by non-

constitutional error, an appellate court considers testimony, physical evidence, jury

instructions, the State’s theory and any defensive theory, closing arguments, and voir

dire, if applicable. Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002).

Factors for consideration include “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,” whether the State emphasized the error, and whether

overwhelming evidence of guilt was present. Id. at 355–56.

B.    Polk’s arguments why evidence was inadmissible hearsay

      Polk argues that Sullivan’s testimony relaying Wallace’s statement that Polk

would drive the Jetta was inadmissible hearsay. The State argues that the statement

was not offered for the truth of the matter asserted—that Polk drove the Jetta—but,

instead, to explain what led the police to take the next steps in their investigation.

See Dinkins v. State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995) (extrajudicial

statement offered for what was said rather than its truth is not hearsay). Polk counters

that the police had identified Polk in the surveillance videos before they went to his

mother’s house and talked to Wallace; therefore, Wallace’s statement did not impact


                                           11
the police investigation’s course. Instead, according to Polk, the State sought to

admit Wallace’s statement to prove that Polk drove the Jetta, making the statement

inadmissible hearsay.

      Regarding the objected-to cell phone records, Polk argues they were

inadmissible hearsay because the custodian of records did not testify and the

authenticating document attached to the records to bring them within the

business-records exception was defective. See TEX. R. EVID. 803(6) (hearsay

exception for records of regularly conducted activity), 902(10) (setting forth

requirements for self-authenticating business records accompanied by affidavit).

The State counters that the custodian’s authenticating document need not meet the

requirements of a business-records affidavit because it qualifies as an unsworn

declaration under Section 132.001 of the Civil Practice and Remedies Code. See

TEX. CIV. PRAC. & REM. CODE § 132.001 (providing that unsworn declaration may

be used in lieu of written sworn declaration or affidavit and setting forth required

content of declaration); see also Dominguez v. State, 441 S.W.3d 652, 659 (Tex.

App.—Houston [1st Dist.] 2014, no pet.) (concluding that letter from T-Mobile

employee accompanying cell tower records met requirements of Rule 803(6) and

Section 132.001 to overcome hearsay challenge).




                                        12
      The State also argues that, even if the trial court erred in denying Polk’s

hearsay objections in these two instances, any error is not reversible given the

significant other evidence of Polk’s guilt. We agree.

C.    Any error in admitting evidence was harmless

      Polk challenges the trial court’s rulings to admit two pieces of evidence in his

capital murder trial: Sullivan’s disclosure of what Wallace told him and the cell

phone records. We may not reverse the trial court’s judgment based on these

evidentiary rulings—even if either or both constituted inadmissible hearsay—if the

admission of the evidence did not harm Polk. See TEX. R. APP. P. 44.2(b); Campos,

317 S.W.3d at 779; see Pickron v. State, 515 S.W.3d 462, 466–67 (Tex. App.—

Houston [14th Dist.] 2017, pet. ref’d). Polk was not harmed by the evidence for two

reasons.

      First, the evidence was cumulative. The import of the cell phone records was

that they supported an inference that Polk was near the gas station at the time of the

shooting and that his non-use of his phone for several hours after the shooting was

outside his normal daily behavior. But other evidence admitted at trial strongly

supported the conclusion that Polk was not only near the gas station 30 minutes

before the shooting but, also, the person who sat in Levi’s car and shot Robinson.

Levi positively identified Polk as the shooter. The detectives positively identified

Polk by comparing the surveillance videos to photos of Polk. The license plate and


                                         13
the physical damage seen on the Jetta in the surveillance videos matched that of a

Jetta registered to Polk’s mother. Further, Polk’s prints were recovered from Levi’s

car even though the two did not know each other before the day of the shooting.

      The cell phone records placing Polk near the gas station were cumulative of

this other evidence admitted without objection. See Kennard v. State, No. 01-16-

00984-CR, 2017 WL 5623583, at *5 (Tex. App.—Houston [1st Dist.] Nov. 21, 2017,

no pet.) (mem. op., not designated for publication) (concluding that any error in

admitting cell phone records was harmless given, among other evidence, testimony

from witnesses who saw appellant at scene); Speers v. State, No. 05-14-00179-CR,

2016 WL 929223, at *10 (Tex. App.—Dallas Mar. 10, 2016, no pet.) (mem. op., not

designated for publication) (concluding that cell phone records were cumulative of

testimony of trial witnesses and therefore their admission, if erroneous, was

harmless).

      Likewise, Wallace’s statement to Detective Sullivan was cumulative of other

evidence admitted without objection. The police had already watched the

surveillance videos, determined that the Jetta in the videos belonged to Washington,

determined that Washington was Polk’s mother, and compared and matched the

video images to photos of Polk. Polk is seen in the videos driving the Jetta. The

detectives later saw the matching Jetta parked near Polk’s mother’s house with a

matching license plate and matching body damage. Wallace’s general statement that


                                        14
Polk was known to drive the Jetta was cumulative of this other, unobjected-to

evidence linking Polk to the Jetta at the time of the shooting. See Diamond v. State,

496 S.W.3d 124, 143 (Tex. App.—Houston [14th Dist.] 2016, pet. ref’d) (holding

hearsay testimony harmless because testimony was cumulative of other evidence).

        Second, the record as a whole contains overwhelming evidence of guilt

independent of the objected-to evidence. Levi identified Polk as the shooter from his

hospital bed and in court. Surveillance videos showed a Jetta matching one owned

by Polk’s mother at the gas station and a person identified as Polk getting out of the

Jetta and into Levi’s car immediately before Robinson was shot inside the car. And

there was physical evidence placing Polk’s print on Levi’s car even though Levi

testified he had never met Polk before the day of the shooting. Finally, the shell

casings found in both cars matched.

        The State’s theory, summarized in closing argument, was that Polk set up the

gun sale intending to rob Levi and Robinson. Polk ordered them to give him what

they had, and he intentionally shot Robinson during the attempted robbery. After

shooting Robinson, Polk picked up the money Levi threw into the backseat, and Polk

took Robinson’s gun. To avoid any witnesses against him, Polk then chased and shot

Levi.

        Polk did not testify. His defensive theory was centered on challenging whether

the State proved the underlying offense of robbery as part of the capital murder


                                          15
charge and arguing that the State had “overcharged” him. Thus, Polk’s defensive

theory was focused on the robbery aspect of the case, not his identification. But Polk

does not challenge on appeal whether there was sufficient evidence to support the

elements of capital murder or, more specifically, the underlying robbery offense.

Instead, he challenges the hearsay rulings.

      In light of the other strong evidence of guilt—including the surveillance

videos, physical evidence, and Levi’s identification of Polk as the shooter—we

conclude that any error in admitting these two items of evidence is harmless. See

Pickron, 515 S.W.3d at 466–67; Thomas v. State, No. 01-07-00742-CR, 2018 WL

4757018, at *3 (Tex. App.—Houston [1st Dist.] Oct. 30, 2008, pet. ref’d) (mem. op.,

not designated for publication) (concluding any error in admitting evidence was

harmless given overwhelming evidence of appellant’s guilt aside from complained-

of evidence).

                                    Conclusion

      We affirm.




                                                Sarah Beth Landau
                                                Justice

Panel consists of Justices Keyes, Higley, and Landau.

Do not publish. TEX. R. APP. P. 47.2(b).

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