                                                         WITHDRAWN 10/11/12
                                                            REISSUED 10/11/12
                                 IN THE
                         TENTH COURT OF APPEALS

                               No. 10-11-00101-CR

ARTIS LEE POLLARD,
                                                      Appellant
v.

THE STATE OF TEXAS,
                                                      Appellee



                          From the 85th District Court
                              Brazos County, Texas
                        Trial Court No. 10-02398-CRF-85


                                   OPINION


      In nine issues, appellant, Artis Lee Pollard, challenges his capital-murder

conviction pertaining to the shooting death of Terrell McCoy. See TEX. PENAL CODE

ANN. § 19.03(a)(2) (West Supp. 2011). We affirm.
                                         I.      BACKGROUND

        On the evening of December 22, 2006, Bennie Hawkins had a Christmas party at

a small house he owned in Bryan, Texas.1 At this party, Hawkins and twenty to twenty-

five others fried fish, played cards, and shot craps. Several witnesses testified that the

dice game was the main attraction at the party and that approximately $10,000 to

$15,000 was in play at any given time. Among the people in attendance were Hawkins,

McCoy, Xavier Young, Patrick Young, Marion Young, David Rayford, and Brandon

Williams.      Most of these men referred to themselves using aliases.                 In particular,

witnesses confirmed that Marion was known as “Two-Tone” or “Tone”; that McCoy

was referred to as “Mississippi”; and that Williams’s alias was “Smoke.” None of the

witnesses who testified at trial saw Pollard at the party that night, and they denied

knowing him. However, Xavier noted that there was a lot of tension between Smoke

and Mississippi and that they stared at each other all night.2 Nevertheless, the party

continued on into the wee hours of the night.

        At around 1:00 a.m., Xavier went out the back door of the house to smoke a

cigarette when he was confronted by two men with guns. With a gun in his face, Xavier

was ordered to get to the ground. Several witnesses testified that both men had braided

hair, bandannas covering their faces, Creole accents, and nine-millimeter pistols.

Witnesses saw a third robber—who had braids, a bandanna covering his face, and a

        1 Witnesses testified that Hawkins’s house was secluded and that the area surrounding the house

was pitch dark on the night of the incident.

        2Two-Tone also observed the tension between Smoke and Mississippi, noting that Smoke and
Mississippi “had some words or something out” at the party.


Pollard v. State                                                                                Page 2
Creole accent—running from around the side of the house carrying an AK-47. The

third robber ordered the two other men to shoot Xavier, but before they could do so,

Xavier slammed the back door and ran inside towards the restroom. The robbers shot

through the door and came inside.

        Once the robbers were inside the house, people scattered, including eight to ten

people who followed Xavier into the restroom. The robbers ordered everyone to empty

their pockets and come into the living room. After emptying his pockets, Xavier sat

down on a loveseat next to Mississippi. The robbers threatened that they would kill

everyone if they found money in people’s shoes or in other places. One of the robbers

checked Two-Tone’s shoes and found nothing. Shortly thereafter, one of the robbers

stood up and shot Mississippi in the head several times. Xavier stated that Mississippi

did not appear to be worried about the robbery and that Mississippi was shot before he

could answer Xavier’s question as to the identity of the robbers. One of the bullets

ended up hitting Xavier in the hip and exiting out his back. After being shot, Xavier

fainted, and Mississippi died immediately. Later, Xavier was taken to the hospital for

medical treatment.

        Subsequently, police investigated the scene of the crime.    Paul Martinez, an

investigator with the Brazos County Sheriff’s Department, found four nine-millimeter

shell casings on the floor, a bullet lodged in a door jamb, another bullet underneath a

cushion in the couch, and several blood drops and smears that appeared to be fresh.

Martinez sent the items collected from the crime scene to be DNA-tested. Initially,

forensic investigators were unable to identify the source of a couple of the blood drops

Pollard v. State                                                                  Page 3
found inside Hawkins’s house. In the meantime, Martinez questioned the people who

attended the party that night, including Smoke. Martinez later determined that Pollard

was a person of interest.

        However, Pollard proved to be difficult for Martinez to track down. At trial,

Pollard testified that he fled his hometown of Brenham, Texas, when friends notified

him that the police wanted to question him. Pollard insisted that he fled because he had

outstanding misdemeanor warrants, though he admitted that he was aware that

Mississippi had been killed and that blood from an unknown source, which was later

confirmed to be Pollard’s, was found at the scene of the crime. In his flight from law

enforcement, Pollard used an alias, was aware that police used a helicopter to look for

him, and told friends that he needed to change the plates on his car and that Texas law

enforcement did not have jurisdiction to arrest him at his final destination—his place of

birth, New Orleans, Louisiana.

        Law enforcement finally caught up with Pollard, resulting in his arrest in St.

Bernard Parish, Louisiana. Martinez interviewed Pollard on June 5, 2009, and after

waiving his Miranda rights, Pollard agreed to speak with Martinez. In his conversation

with Martinez, Pollard stated that he was at a bar in Giddings, Texas, the night that

Mississippi was killed. Pollard denied shooting Mississippi, and he denied ever having

been to Hawkins’s house.      During a second conversation with Martinez, Pollard

reiterated that he was at a club in Giddings on the night of the murder and that he had

never been to Hawkins’s house. Pollard added that he had only been to Bryan to go to




Pollard v. State                                                                   Page 4
the mall or the movies, not to shoot dice. When asked about the blood drops found

inside Hawkins’s house, Pollard denied that the blood was his.

         Pollard was subsequently transported back to Texas, where he was incarcerated

in the Washington County jail. During Pollard’s stay in the Washington County jail,

Jailer Christopher Kulow received a telephone call from Texas Department of Public

Safety Sergeant Robert Neuendorf, who was also investigating the case.                          Sergeant

Neuendorf asked Kulow if he could isolate Pollard to obtain a sample of his DNA.

Apparently, Pollard had been issued a cup and a spoon when he was admitted to the

Washington County jail, and he had made it a point to wash the cup and spoon several

times a day to prevent prison officials from obtaining a sample of his DNA. 3 Kulow

offered Pollard the opportunity to make a telephone call in a detoxification cell (“detox

cell”). According to Kulow, the “detox cell was empty and had been cleaned previously

by a floor worker,” and the telephone in the “detox cell” had better reception than

others. Pollard accepted Kulow’s offer and proceeded to talk on the telephone for

approximately three hours.              While making his rounds, Kulow observed Pollard’s

actions and noted that Pollard was the only inmate in the “detox cell.”

         When it was time for the inmates to eat, Kulow offered to let Pollard eat his meal

in the “detox cell.” Pollard agreed. When Pollard finished with his meal and his

telephone calls, he stood at the bars of the “detox cell” until he was escorted back to his

cell.4       After escorting Pollard back to his cell, Kulow returned to the “detox cell” to



         3   At some point, police requested that Pollard provide a DNA sample, but he refused to comply.


Pollard v. State                                                                                    Page 5
retrieve the cup and the spoon. While wearing gloves, Kulow picked up the cup and

spoon, placed it in a bag, and contacted Sergeant Neuendorf, who came by to pick up

the items an hour later.

        Pollard’s DNA on the cup and the spoon were compared to the blood drops

found at Hawkins’s house, and as mentioned earlier, it was determined that Pollard

was the source of the unknown blood drops found at Hawkins’s house. Police later

obtained a search warrant to take a buccal swab from Pollard, which further confirmed

that he was the source of the unknown blood drops at Hawkins’s house.

        Pollard was charged by indictment with capital murder. See id. Prior to trial on

this matter, Pollard filed four separate motions to suppress, challenging: (1) DNA

evidence collected from the cup and spoon Pollard handled in the “detox cell”; (2)

statements Pollard made to Martinez; (3) evidence obtained from the collection of

Pollard’s saliva; and (4) evidence obtained from Pollard’s cellular telephone. The trial

court denied all of Pollard’s motions to suppress and entered numerous findings of fact

and conclusions of law.

        Trial commenced in this matter on February 21, 2011, and Pollard testified on his

own behalf. In his testimony, Pollard offered yet another explanation regarding his

whereabouts on the night of the incident. Pollard admitted that he was at Hawkins’s

house that night and that he was shooting dice with everyone else. Pollard stated that

he was caught switching dice—cheating—while playing and that he was subsequently


        4 Kulow testified that Pollard was not handcuffed when he was moved from his cell to the “detox
cell” and back.


Pollard v. State                                                                                Page 6
assaulted by others who were playing, which resulted in Pollard getting cut on his

elbow and bleeding inside the house. When asked why he lied to police about his

whereabouts that evening, Pollard responded, “Because my name was never brought

up in the investigation from the police who was [sic] there.” Nevertheless, Pollard

testified that, after getting thrown out of the party, he went to Brenham, Texas. He

denied participating in the robbery, and he emphasized that he has tattoos on his hand

and forearms which are visible to others.5 Pollard also acknowledged that he had not

been truthful to police about other aspects of the case, and that he had communicated to

Keith Williams, the father of his sister’s child, that: (1) he needed to change the plates

on his car; (2) he was 100-percent loyal and to tell everybody that they need not worry

because he was not going to talk; and (3) he was certain that law enforcement did not

have his DNA.

        At the conclusion of the evidence, the jury convicted Pollard of the charged

offense. The trial court assessed punishment at life imprisonment without parole in the

Institutional Division of the Texas Department of Criminal Justice.                     This appeal

followed.

                     II.     POLLARD’S CONFRONTATION-CLAUSE OBJECTION

        In his first issue, Pollard argues that the trial court erred in permitting the State

to introduce the results of scientific testing based on the work done by a person other

than the State’s expert witness at trial, even though Pollard objected that the testimony


        5 Pollard seemed to suggest that, because eyewitnesses and the police did not document the fact
that one of the assailants had tattoos on his hands and forearms, he could not be identified as a
participant in the robbery.

Pollard v. State                                                                                Page 7
violated the Confrontation Clause of the United States and Texas Constitutions. See

U.S. CONST. amends. VI, XIV; TEX. CONST. art. I, § 10.

A.      Applicable Law

        The Confrontation Clause of 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. This

procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas,

380 U.S. 400, 403, 85 S. Ct. 1065, 1067-68, 13 L. Ed. 2d 923 (1965); De La Paz v. State, 273

S.W.3d 671, 680 (Tex. Crim. App. 2008). Consistent with the Confrontation Clause

guarantee, a testimonial hearsay statement may be admitted in evidence against a

defendant “only where the declarant is unavailable, and only where the defendant has

had a prior opportunity to cross-examine.” Crawford v. Washington, 541 U.S. 36, 68, 124

S. Ct. 1354, 1373-74, 158 L. Ed. 2d 177 (2004); see De La Paz, 273 S.W.3d at 680. “[T]he

Crawford rule reflects the Framers’ preferred mechanism (cross-examination) for

ensuring that inaccurate out-of-court testimonial statements are not used to convict an

accused.” Whorton v. Bockting, 549 U.S. 406, 418, 127 S. Ct. 1173, 1182, 167 L .Ed. 1

(2007); De La Paz, 273 S.W.3d at 680. “Generally, speaking, a hearsay statement is

‘testimonial’ when the surrounding circumstances objectively indicate that the primary

purpose of the interview or interrogation is to establish or prove past events potentially

relevant to later criminal prosecution.” De La Paz, 273 S.W.3d at 680. Whether a

statement is testimonial is a question of law. Id.; see Langham v. State, 305 S.W.3d 568,

576 (Tex. Crim. App. 2010).

Pollard v. State                                                                      Page 8
B.      Discussion

        Here, Pollard complains that the State offered the testimony of Brandi Mohler, a

forensic scientist for the Texas Department of Public Safety (“DPS”), in lieu of Jane

Burgett, the DPS forensic scientist who actually DNA-tested the seized spoon and cup

and compared the DNA profile to that of the blood drops found at Hawkins’s house.

Specifically, Pollard argued at the hearing on one of his motions to suppress that: “To

the extent that Brandi Mohler is relying upon swabbing done by another expert who is

not subject to cross-examination, we would object on confrontation grounds under the

state and federal Constitution.”        Pollard later clarified his objection, stating the

following: “We consider this lynch pin. The swabbing of the spoon that—from which

DNA was extracted is testimonial evidence.          We contend it—in fact, it meets the

requirements of testimonial evidence under Crawford and would object to any evidence

offered by the expert Brandi Mohler that relies on the testimonial evidence, the

swabbing of the spoon.”      The trial court subsequently denied Pollard’s objection.

Pollard then requested a running objection to testimony regarding the swabbing of the

spoon, which the trial court granted.

        Mohler testified that she “did not process the evidence.” However, she noted

that: “I actually extracted DNA from the swabs of the teaspoon and the cup and

subjected them to PCR, which I was talking about is the copying of the DNA. And then

I compared that to a profile that was obtained from Item 7 which is [the blood found

near] the rear point of entry [of Hawkins’s house] and is—and I compared it to Item

P1[,] which is the teaspoon.” Nevertheless, Mohler later acknowledged that she relied

Pollard v. State                                                                    Page 9
on the work of another analyst, Burgett, in forming her opinions in this case. And, as

Pollard notes, the seized cup and spoon were delivered to the DPS lab on July 22, 2009;

but, Mohler was not certified to perform DNA analyses until September 19, 2009.

        Despite this testimony, Mohler also testified that the DPS lab received a known

saliva sample from Pollard on March 1, 2010. Mohler, having obtained certification to

perform DNA analyses at this point, conducted the DNA testing on the known saliva

sample and compared it to the blood drops found at Hawkins’s house. Mohler’s testing

revealed that Pollard was the source of the blood drops.

        Because this issue is of a constitutional dimension, we must reverse Pollard’s

conviction unless we are satisfied beyond a reasonable doubt that the alleged error did

not contribute to the conviction or punishment. See TEX. R. APP. P. 44.2(a). Courts

reviewing whether an error in admitting an out-of-court statement in violation of the

Confrontation Clause is harmless beyond a reasonable doubt should consider several

factors: (1) the importance of the hearsay statements to the State’s case; (2) whether the

hearsay statement was cumulative of other evidence; (3) the presence or absence of

evidence corroborating or contradicting the hearsay testimony on material points; and

(4) the overall strength of the prosecution’s case. Davis v. State, 203 S.W.3d 845, 852

(Tex. Crim. App. 2006). In conducting this harm analysis, we consider the likelihood

that the constitutional error adversely affected “the integrity of the process leading to

the conviction.” Scott v. State, 227 S.W.3d 670, 690 (Tex. Crim. App. 2007).

        Assuming without deciding that the trial court erred in admitting Mohler’s

testimony that relied on Burgett’s testing of the seized cup and spoon, we can say,

Pollard v. State                                                                   Page 10
beyond a reasonable doubt, that the trial court’s admission of the complained-of

evidence did not contribute to Pollard’s conviction or punishment. See Scott, 227 S.W.3d

at 690-91; see also Davis, 203 S.W.3d at 852. In fact, the complained-of evidence was: (1)

cumulative of Mohler’s testimony regarding her DNA-testing of Pollard’s saliva; (2) not

absolutely necessary to the State’s case because the results of Mohler’s DNA-testing of

Pollard’s saliva proved the same fact; and (3) corroborated by Mohler’s DNA-testing of

Pollard’s saliva. See Davis, 203 S.W.3d at 852. Furthermore, the DNA tests on Pollard’s

saliva confirmed that he had lied to police and placed Pollard at the scene of the crime

on the night of the incident—both facts that strengthened the State’s case. See id.

        In addition, Pollard also appears to argue that his right to confront Burgett was

violated regarding all of the items she tested. However, when reviewing the record,

Pollard’s Confrontation Clause objection was limited to Mohler’s reliance on Burgett’s

testing of the spoon. Thus, Pollard’s complaint on appeal does not comport with his

objection in the trial court. See TEX. R. APP. P. 33.1(a)(1); Wilson v. State, 71 S.W.3d 346,

349 (Tex. Crim. App. 2002) (stating that a complaining party must make a timely and

specific objection to preserve error for appellate review); see also Wright v. State, 154

S.W.3d 235, 241 (Tex. App.—Texarkana 2005, pet. ref’d) (noting that points of error on

appeal must correspond or comport with objections and arguments made at trial)

(citing Dixon v. State, 2 S.W.3d 263, 273 (Tex. Crim. App. 1998))).         “Where a trial

objection does not comport with the issue raised on appeal, the appellant has preserved

nothing for review.” Wright, 154 S.W.3d at 241; see Ibarra v. State, 11 S.W.3d 189, 197

(Tex. Crim. App. 1999). Accordingly, we overrule Pollard’s first issue.

Pollard v. State                                                                      Page 11
                        III.     POLLARD’S MOTIONS TO SUPPRESS EVIDENCE

        In his second through fifth issues, Pollard complains about the trial court’s denial

of his motions to suppress evidence pertaining to the warrantless seizure of his DNA

from the cup and spoon, the DNA-testing of his saliva, evidence obtained from his cell

phone, and statements he made to Martinez.6

A.      Standard of Review

        We review the trial court’s ruling on a motion to suppress evidence for an abuse

of discretion, using a bifurcated standard. Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim.

App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give

“almost total deference” to the trial court’s findings of historical fact that are supported

by the record and to mixed questions of law and fact that turn on an evaluation of

credibility and demeanor. Guzman, 955 S.W.2d at 89. We review de novo the trial

court’s determination of the law and its application of law to facts that do not turn upon

an evaluation of credibility and demeanor. Id. When the trial court has not made a

finding on a relevant fact, we imply the finding that supports the trial court’s ruling, so

long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.

        6  To the extent that Pollard argues that the actions subject to his motions to suppress violated the
Texas Constitution, we note that Pollard fails to analyze, argue, or provide authority to establish that his
protection under the Texas Constitution exceeds or differs from that provided to him by the Federal
Constitution. See Arnold v. State, 873 S.W.2d 27, 33 (Tex. Crim. App. 1993) (declining to analyze an
appellant’s state constitutional argument regarding the suppression of his confession because appellant
failed to analyze, argue, or provide authority establishing that his protection under the Texas
Constitution exceeded or differed from the protections afforded under the Federal Constitution). In fact,
he acknowledges that the Texas Constitution does not provide protections greater than the Fourth
Amendment to the Federal Constitution. Thus, we will not address Pollard’s state constitutional
arguments and, instead, analyze his complaints within the context of the Federal Constitution. See Green
v. State, 934 S.W.2d 92, 96 n.1 (Tex. Crim. App. 1996); Muniz v. State, 851 S.W.2d 238, 251-52 (Tex. Crim.
App. 1993); see also Olivarez v. State, 171 S.W.3d 283, 288 n.2 (Tex. App.—Houston [14th Dist.] 2005, no
pet.).

Pollard v. State                                                                                    Page 12
Crim. App. 2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). 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. State v. Dixon, 206 S.W.3d 587,

590 (Tex. Crim. App. 2006).

        When a trial judge makes explicit fact findings regarding a motion to suppress,

an “appellate court [must first] determine whether the evidence (viewed in the light

most favorable to the trial court’s ruling) supports these fact findings.”         Kelly, 204

S.W.3d at 818; see State v. Castleberry, 332 S.W.3d 460, 465 (Tex. Crim. App. 2011) (“When

the trial judge makes explicit findings of fact, we afford those findings almost total

deference as long as the record supports them . . . .”). “The appellate court then reviews

the trial court’s legal ruling[s] de novo unless the trial court’s supported-by-the-record

explicit fact findings are also dispositive of the legal ruling.” Kelly, 204 S.W.3d at 818.

B.      DNA obtained from the cup and spoon

        In his second issue, Pollard contends that the trial court abused its discretion in

denying his motion to suppress evidence obtained from the warrantless seizure of his

DNA from the cup and spoon taken from the “detox cell.” In the trial court, Pollard

initially argued that he had a reasonable expectation of privacy in the cup and spoon

that was collected by Kulow. However, in his motion to suppress, Pollard amended his

argument to state that he has a reasonable expectation of privacy in his DNA. The State

countered that Pollard did not have a reasonable expectation of privacy in his DNA and

that he abandoned the seized cup and spoon when he returned to his cell. As stated



Pollard v. State                                                                       Page 13
earlier, the trial court denied Pollard’s motion to suppress and entered numerous

findings of fact and conclusions of law.

          Essentially, Pollard asserts that his Fourth-Amendment right to be free from

unreasonable seizures was violated. See U.S. CONST. amend. IV. The United States

Supreme Court has held that the applicability of the Fourth Amendment turns on

whether “the person invoking its protection can claim a ‘justifiable,’ a ‘reasonable,’ or a

‘legitimate expectation of privacy’ that has been invaded by government action.”

Hudson v. Palmer, 468 U.S. 517, 525, 104 S. Ct. 3194, 3199, 82 L. Ed. 2d 393 (1984) (citing

Smith v. Maryland, 442 U.S. 735, 740, 99 S. Ct. 2577, 2580, 61 L. Ed. 2d 220 (1979)). The

Texas Court of Criminal Appeals has stated that the burden of establishing a legitimate

expectation of privacy is upon the defendant. See Villarreal v. State, 935 S.W.2d 134, 138

(Tex. Crim. App. 1996) (citing Calloway v. State, 743 S.W.2d 645, 650 (Tex. Crim. App.

1988)).     “To carry this burden, the accused must normally prove:        (a) that by his

conduct, he exhibited an actual subjective expectation of privacy, i.e., a genuine

intention to preserve something as private; and (b) that circumstances existed under

which society was prepared to recognize his subjective expectation as objectively

reasonable.” Id.

          However, the collection of DNA from prisoners has been found to be reasonable

in light of an inmate’s diminished privacy rights, the minimal intrusion involved, and

the legitimate government interest in using DNA to investigate crime. See Hudson, 468

U.S. at 525-26, 104 S. Ct. at 3200 (“[W]e hold that society is not prepared to recognize as

legitimate any subjective expectation of privacy that a prisoner might have in his prison

Pollard v. State                                                                    Page 14
cell . . . . The recognition of privacy rights for prisoners in their individual cells simply

cannot be reconciled with the concept of incarceration and the needs and objectives of

penal institutions.”); Groceman v. U.S. Dep’t of Justice, 354 F.3d 411, 413 (5th Cir. 2004);

Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003) (per curiam) (holding that the

collection of DNA samples from felons does not violate the Fourth Amendment); Oles v.

State, 993 S.W.2d 103, 108 (Tex. Crim. App. 1999) (“[W]hile an appellant is incarcerated,

he has no expectation of privacy in the jail cell . . . .”); see also Drewery v. State, No. 08-04-

00201-CR, 2005 Tex. App. LEXIS 5898, at **21-22 (Tex. App.—El Paso July 28, 2005, pet.

ref’d) (mem. op., not designated for publication).

        In the present case, Pollard declined to voluntarily provide police with a sample

of his DNA and told Williams that the police did not have his DNA.7 In addition,

Pollard presented testimony that he washed his cup and spoon several times a day to

prevent law enforcement from collecting his DNA. However, as stated in the trial

court’s findings of fact, Pollard voluntarily accepted prison officials’ offer to make

telephone calls in the “detox cell.”               Moreover, the evidence adduced at trial

demonstrated that Pollard did not object to eating in the “detox cell” and using a

different prison-issued Styrofoam cup and plastic spoon. And unlike the cup and


        7 Pollard also asserts that police improperly collected his DNA because the collection of DNA
samples from pre-trial detainees is not permissible according to section 411.148 of the Texas Government
Code. See TEX. GOV’T CODE ANN. § 411.148 (West Supp. 2011). This particular portion of the government
code pertains to the mandatory collection of DNA samples from incarcerated inmates for the creation of a
DNA database. See id. §§ 411.141-.148 (West Supp. 2011). In particular, section 411.148 of the Texas
Government Code requires a DNA sample from individuals who are confined in a penal institution after
sentencing and before admission to the Texas Department of Criminal Justice and allows prison officials
to use force if it is necessary to collect such a sample. See id. § 411.148(h), (i)(1)(A). However, because
Pollard voluntarily left his DNA behind on the cup and spoon located in the “detox cell,” we do not find
these statutory provisions to be relevant.

Pollard v. State                                                                                   Page 15
spoon he left behind in his cell, Pollard did not make any attempt to keep the cup and

spoon issued in the “detox cell,” nor did he request to keep or wash those items to

prevent police from collecting his DNA. In addition, the record does not contain any

evidence indicating that Pollard was told that he could not take the cup and spoon with

him.

        When he was finished making his telephone calls, Pollard stood at the bars and

waited to be escorted back to his cell. Ostensibly, Pollard abandoned the cup and spoon

in the “detox cell”; therefore, in this instance, he did not demonstrate a genuine

intention to keep his DNA private.8 See McDuff v. State, 939 S.W.2d 607, 616 (Tex. Crim.

App. 1997) (“[A]bandonment is primarily a question of intent to be inferred from words

spoken, acts done, and other objective facts and relevant circumstances, with the issue

not being in the strict property-right sense, but rather whether the accused had

voluntarily discarded, left behind, or otherwise relinquished his interest in the property

so that he could no longer retain a reasonable expectation of privacy with regard to it at

the time of the search.”); Brimage v. State, 918 S.W.2d 466, 507 (Tex. Crim. App. 1994)

(op. on reh’g) (en banc) (“We have held that an abandonment of property occurs if (1)

the defendant intended to abandon the property and (2) his decision to abandon the

property was not due to police misconduct.”); Hawkins v. State, 758 S.W.2d 255, 257

        8 Pollard contends that the collection of his DNA from the cup and spoon “was not through
appellant’s voluntary conduct, but purely by virtue of the control exercised over him through his
incarceration.” Despite this assertion, Pollard does not specifically mention any conduct that would
amount to police misconduct and, thus, undermine the trial court’s conclusion of law that Pollard
abandoned the cup and spoon in the “detox cell.” Furthermore, we find it curious that Pollard went to
great efforts to protect his DNA with regard to the cup and spoon in his cell but made no efforts
whatsoever to protect the DNA on the cup and spoon given to him while he was in the “detox cell.” In
addition, the record indicates that Pollard willingly went to the “detox cell” to make the telephone calls
and to eat, undermining any assertion of control or coercion by the police.

Pollard v. State                                                                                  Page 16
(Tex. Crim. App. 1988) (“The general rule in Texas with respect to abandoned property

has been that ‘when police take possession of abandoned property, there is not a seizure

under the Fourth Amendment.” (quoting Clapp v. State, 639 S.W.2d 949, 953 (Tex. Crim.

App. 1982))); see also Hudson v. State, 205 S.W.3d 600, 604-05 (Tex. App.—Waco 2006,

pet. ref’d) (holding that the warrantless seizure of a defendant’s DNA from a Dr.

Pepper can that was voluntarily thrown in the trash did not violate the Fourth

Amendment because the defendant’s action of throwing the can in the trash indicated

an intent to abandon the can).

        Because prisoners have diminished privacy rights during incarceration, the

collection of DNA from prisoners has been found to be reasonable in light of an

inmate’s diminished privacy rights, the minimal intrusion involved, and the legitimate

government interest in using DNA to investigate crime, and because Pollard abandoned

the cup and spoon in the “detox cell,” we conclude that Pollard failed to satisfy his

burden of proving a legitimate expectation of privacy in either the cup and spoon or his

own DNA. See Villarreal, 935 S.W.2d at 138. Accordingly, we cannot say that the trial

court abused its discretion in denying Pollard’s motion to suppress the seizure of his

DNA from the cup and spoon found in the “detox cell.” See Crain, 315 S.W.3d at 48; see

also Guzman, 955 S.W.2d at 88-89. We overrule Pollard’s second issue.

C.      DNA testing of Pollard’s saliva and evidence obtained from his cell phone

        In his third and fourth issues, Pollard also argues that the trial court abused its

discretion in denying his motion to suppress DNA evidence collected from his saliva

and evidence collected from his cell phone. Specifically, Pollard alleges:

Pollard v. State                                                                    Page 17
                As the trial court found, the subsequent warrants for appellant’s
        saliva and the contents of his cell phone were obtained as a result of the
        information from the warrantless seizure. . . . When the results of DNA
        comparison based on the warrantless seizure is [sic] removed from the
        warrant applications, they fail to establish probable cause. The State
        offered no other basis to establish probable cause. The trial court erred in
        denying appellant’s motions to suppress the evidence obtained as a result
        of the search warrant for appellant’s saliva and cell phone.

(Citation omitted).

        Clearly, Pollard’s complaints about the evidence obtained from his saliva and the

cell phone are premised on his assumption that the DNA evidence obtained from the

cup and spoon from the “detox cell” is inadmissible as an illegal seizure. However,

because we have already concluded that the collection of Pollard’s DNA evidence from

the cup and spoon from the “detox cell” did not amount to an illegal seizure and

because the result of the DNA-testing demonstrated that Pollard was the source of the

blood drops at Hawkins’s house, we cannot say that the State lacked probable cause to

obtain the search warrants to test Pollard’s saliva and search the contents of his cell

phone.     See Wiede v. State, 214 S.W.3d 17, 24 (Tex. Crim. App. 2007) (stating that

probable cause exists where the known facts and circumstances are sufficient to warrant

a man of reasonable prudence in the belief that contraband or evidence of a crime will

be found); Rodriguez v. State, 232 S.W.3d 55, 60 (Tex. Crim. App. 2007) (“The cornerstone

of the Fourth Amendment and its Texas equivalent is that a magistrate shall not issue a

search warrant without first finding ‘probable cause’ that the particular item will be

found in a particular location.” (citing U.S. CONST. amend. IV; TEX. CONST. art. I, § 9)).

Based on the record before us, we cannot conclude that the trial court abused its


Pollard v. State                                                                       Page 18
discretion in denying Pollard’s motions to suppress this evidence. See Crain, 315 S.W.3d

at 48; see also Guzman, 955 S.W.2d at 88-89. Accordingly, Pollard’s third and fourth

issues are overruled.

D.      Pollard’s Statements to Martinez

        Though Pollard complains in his fifth issue that the trial court abused its

discretion in denying his motion to suppress statements he made to Martinez in

Louisiana, he does not provide any argument or authority in support of his contention.

Texas Rule of Appellate Procedure 38.1(i) states that, to present an issue for review, a

brief must contain appropriate citations to authorities. TEX. R. APP. P. 38.1(i). Because

Pollard does not cite to any authority and does not provide any argument in support of

this issue, we conclude that Pollard’s fifth issue is inadequately briefed and presents

nothing for review. See id.

                              IV.   SUFFICIENCY OF THE EVIDENCE

        In his sixth issue, Pollard contends the evidence supporting his conviction in this

case is insufficient. Specifically, Pollard argues that he “denied involvement . . ., and no

witness identified [him] as shooting Terrell McCoy or participating in the robbery.”

A.      Standard of Review

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

               In determining whether the evidence is legally sufficient to support
        a conviction, a reviewing court must consider all of the evidence in the
        light most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.

Pollard v. State                                                                      Page 19
        Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
        13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the
        responsibility of the trier of fact fairly to resolve conflicts in the testimony,
        to weigh the evidence, and to draw reasonable inferences from basic facts
        to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

        The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the

prosecution and therefore defer to that determination. Jackson, 443 U.S. at 326, 99 S. Ct.

at 2792-93.        Further, direct and circumstantial evidence are treated equally:

"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." Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is well established that the

factfinder is entitled to judge the credibility of witnesses and can choose to believe all,

some, or none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d

459, 461 (Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically-correct jury charge for the case. Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under a hypothetically-correct jury charge,

the State was required to prove beyond a reasonable doubt that Pollard intentionally


Pollard v. State                                                                            Page 20
committed a murder in the course of committing or attempting to commit robbery,

among other things. See TEX. PENAL CODE ANN. § 19.03(a)(2).

B.      Law of Parties

        Here, the jury was charged on the law of parties and conspiracy. See TEX. PENAL

CODE ANN. §§ 7.01-.02 (West 2011); see also Montoya v. State, 810 S.W.2d 160, 165 (Tex.

Crim. App. 1989). When a jury is charged on the law of parties, a person may be

convicted as a party to an offense, if the offense is committed by his own conduct or by

the conduct of another for which he is criminally responsible. TEX. PENAL CODE ANN. §

7.01(a). In determining whether the evidence is sufficient to prove that a defendant

participated as a party in committing an offense, we look to “events before, during, and

after the commission of the offense.” Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim.

App. 2006).

        A person is a conspirator under the law of parties if, in the attempt to carry out a

conspiracy to commit one felony, another felony is committed by one of the

conspirators. See TEX. PENAL CODE ANN. § 7.02(b). If the felony actually committed

should have been anticipated as a result of carrying out the conspiracy, then all

conspirators are guilty of the felony actually committed, even if they had no intent to

commit it. See id.

        It is well-settled that a person can be found guilty of capital murder as a

conspiring party under section 7.02(b). See id.; Johnson v. State, 853 S.W.2d 527, 535 (Tex.

Crim. App. 1992); see also Demus v. State, No. 05-09-00175-CR, 2010 Tex. App. LEXIS 429,

at **7-9 (Tex. App.—Dallas Jan. 26, 2010, pet. ref’d) (mem. op., not designated for

Pollard v. State                                                                     Page 21
publication). If the evidence demonstrates that the defendant conspired with others to

commit robbery and, during the robbery, one of the co-conspirators commits capital

murder, the defendant can be held criminally responsible for capital murder if it was in

furtherance of the conspiracy’s unlawful purpose and should have been anticipated.

See Longoria v. State, 154 S.W.3d 747, 755 (Tex. App.—Houston [14th Dist.] 2004, pet.

ref’d). Moreover, Texas courts have held that a conspirator should have anticipated

that a murder would occur when he knew that a co-conspirator was carrying a gun. See

Longoria, 154 S.W.3d at 756-57; see also Demus, 2010 Tex. App. LEXIS 429, at *8.

C.      Discussion

        The evidence showed that, on the night of the incident, Hawkins held a party at

his house, which was located in a secluded area, and that many of those who attended

the party shot dice and bet thousands of dollars on the game. In addition, witnesses

testified that they did not see Pollard at the party, which undermined Pollard’s

testimony at trial that he gambled at the party but was thrown out and assaulted when

he was caught cheating. Pollard’s testimony was further undermined by his prior

statements to police that he had never been to Hawkins’s house and that the blood

found inside the house was not his. In any event, witnesses recalled that Smoke was in

attendance and that he and Mississippi, the deceased, had words during the game and

appeared to be hostile towards each other. Xavier testified that he saw Smoke leave the

party approximately fifteen minutes before the robbery occurred. Later, while going

outside to smoke a cigarette, Xavier was accosted by two men with bandannas over

their mouths. A third man ran from around the side of the house to where the others

Pollard v. State                                                                   Page 22
were. Xavier recalled that all of the men were carrying firearms, had braids, and had

Creole accents.

        Once inside the house, the three robbers had all of the party attendees congregate

in the living room and hand over their money. At some point, one of the robbers stated

that there should have been more money and demanded to inspect Two-Tone’s shoes

and socks. Shortly thereafter, Mississippi was shot and killed. Pollard admitted that he

knew Mississippi and that he was friends with Smoke. In addition, Pollard’s blood was

found inside the house, and several witnesses testified that the blood was not inside the

house prior to the robbery. Moreover, Pollard acknowledged that he was from New

Orleans, Louisiana, and that he had braids at the time of the robbery.

        Further, the State presented evidence regarding Pollard’s flight from law

enforcement during the investigation of the incident, which, as the Texas Court of

Criminal Appeals has held, is also indicative of guilt. See Clayton v. State, 235 S.W.3d

772, 780 (Tex. Crim. App. 2007); see also Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim.

App. 2004). In particular, Pollard admitted to going to great lengths to avoid being

arrested, including using an alias, fleeing to Louisiana in an attempt to avoid the

jurisdiction of Texas law enforcement, and indicating to Williams that he needed to

change the plates on his car. Pollard also testified that he told Williams that: there was

no way investigators had his DNA because he washed his cup and spoon two or three

times a day after they initially requested a DNA sample from him; he was 100 percent

loyal; and that nobody needed to worry because he was not going to talk to

investigators.

Pollard v. State                                                                   Page 23
        Viewing the evidence in the light most favorable to the jury’s verdict, we find

that a rational juror could conclude that the combined and cumulative force of all of the

evidence indicated that Pollard was a party to the robbery and killing of Mississippi

under either section 7.01(a) or 7.02(b) of the penal code, see TEX. PENAL CODE ANN. §§

7.01(a), 7.02(b); thus, we hold that the evidence is sufficient to affirm Pollard’s

conviction under the law of parties. See Lucio, 351 S.W.3d at 894; see also Hooper, 214

S.W.3d at 13. Pollard’s sixth issue is overruled.

         V.        THE JURY CHARGE AND INSTRUCTIONS ON LESSER-INCLUDED OFFENSES

        In his final three issues, Pollard asserts that the trial court erred in denying his

requests for instructions in the jury charge about the lesser-included offenses of murder,

aggravated robbery, and robbery.

        An offense qualifies as a lesser-included offense of the charged offense if: (1) it is

established by proof of the same or less than all the facts required to establish the

commission of the offense charged; (2) it differs from the offense charged only in that a

less serious injury or risk of injury to the same person, property, or public interest

suffices to establish the commission of the offense; (3) it differs from the offense charged

only in that a less culpable mental state suffices to establish its commission; or (4) it

consists of an attempt to commit the offense charged or an otherwise included offense.

TEX. CODE CRIM. PROC. ANN. art. 37.09 (West 2006). To determine whether a defendant

is entitled to an instruction on a lesser-included offense, the court conducts a two-

pronged test. See Ex parte Watson, 306 S.W.3d 259, 272-73 (Tex. Crim. App. 2009); Hall v.

State, 225 S.W.3d 524, 535-36 (Tex. Crim. App. 2007). The first prong of the test requires

Pollard v. State                                                                       Page 24
the court to use the “cognate pleadings” approach to determine whether an offense is a

lesser-included offense of another offense. The first prong is satisfied if the indictment

for the greater-inclusive offense either: “(1) alleges all of the elements of the lesser-

included offense, or (2) alleges elements plus facts (including descriptive averments,

such as non-statutory manner and means, that are alleged for purposes of providing

notice) from which all of the elements of the lesser-included offense may be deduced.”

Ex parte Watson, 306 S.W.3d at 273.

        Both statutory elements and any descriptive averments alleged in the
        indictment for the greater-inclusive offense should be compared to the
        statutory elements of the lesser offense. If a descriptive averment in the
        indictment for the greater offense is identical to an element of the lesser
        offense, or if an element of the lesser offense may be deduced from a
        descriptive averment in the indictment for the greater-inclusive offense,
        this should be factored into the lesser-included-offense analysis in asking
        whether all of the elements of the lesser offense are contained within the
        allegations of the greater offense.

Id. This inquiry is a question of law. Hall, 225 S.W.3d at 535.

        The second prong asks whether there is evidence that supports giving the lesser-

included-offense instruction to the jury.     Id. at 536.   A defendant is entitled to a

requested instruction on a lesser-included offense when the proof for the charged

offense subsumes the proof required to establish the lesser-included offense and some

evidence in the record would permit a rational jury to find that if the defendant is

guilty, he is guilty only of the lesser-included offense. Id. Anything more than a

scintilla of evidence may be sufficient to entitle a defendant to a lesser charge. Id. A

lesser-included-offense instruction is required when the evidence establishes the lesser-

included offense as a valid, rational alternative to the charged offense. Id.

Pollard v. State                                                                      Page 25
        However, the Texas Court of Criminal Appeals has held that:

        A defendant’s own testimony that he committed no offense, or testimony
        that otherwise shows that no offense occurred at all, is not adequate to
        raise the issue of a lesser-included offense. In Bignall v. State, we
        concluded, “if a defendant either presents evidence that he committed no
        offense or presents no evidence, and there is no evidence otherwise
        showing that he is guilty of a lesser-included offense, then a charge on a
        lesser-included offense is not required.” The evidence must establish that
        if a defendant is guilty, he is guilty only of the lesser[-]included offense.

Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001) (internal citations omitted).

        Here, Pollard told police on two different occasions that he had never been to

Hawkins’s house. Later at trial, Pollard testified on his own behalf and told the jury

that he did attend the party to shoot dice but that he was thrown out and assaulted for

cheating.      Throughout his testimony and his statements to police, Pollard denied

committing any offense. Because Pollard denied committing any offense and because

we have already concluded that the evidence is sufficient to support his conviction for

capital murder, we cannot say that the trial court erred in denying his request for

instructions in the jury charge on the lesser-included offenses of murder, aggravated

robbery, and robbery. See Lofton, 45 S.W.3d at 852 (citing Wesbrook v. State, 29 S.W.3d

103, 113 (Tex. Crim. App. 2000); Arevalo v. State, 943 S.W.2d 887, 889-90 (Tex. Crim. App.

1997); Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994)). We overrule Pollard’s

seventh, eighth, and ninth issues.

                                     VI.    CONCLUSION

        Having overruled all of Pollard’s issues on appeal, we affirm the judgment of the

trial court.


Pollard v. State                                                                        Page 26
                                           AL SCOGGINS
                                           Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed May 30, 2012
Publish
[CR25]




Pollard v. State                                         Page 27
