                                                                                   ACCEPTED
                                                                                06-17-00163-cr
                                                                    SIXTH COURT OF APPEALS
                                                                          TEXARKANA, TEXAS
                                                                           3/28/2018 12:15 PM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

                          NO. 06-17-00163-CR

                                                            FILED IN
                                                     6th COURT OF APPEALS
             IN THE SIXTH DISTRICT COURT OF       APPEALS
                                                       TEXARKANA, TEXAS
                        TEXARKANA, TEXAS             3/28/2018 12:15:10 PM
                                                          DEBBIE AUTREY
                                                              Clerk

                        DEION FRAZIER REED,
                             Appellant

                                    v.

                           STATE OF TEXAS
                              Appellee


On appeal from the 124​th​ Judicial District Court for Gregg County, Texas
                    Trial Court Case No. 41,913-B


                   BRIEF OF THE STATE OF TEXAS


               – ORAL ARGUMENT NOT REQUESTED–

                                    CARL DORROUGH
                                    DISTRICT ATTORNEY
                                    GREGG COUNTY, TEXAS

                                     John J. Roberts
                                     Texas Bar No. 24070512
                                     Assistant District Attorney
                                     Gregg County, Texas
                                     101 East Methvin St., Suite 333
                                     Longview, Texas 75601
                                     Telephone:(903) 236–8440
                                     Facsimile: (903) 236–3701
                                    john.roberts@co.gregg.tx.us
                       TABLE OF CONTENTS
TABLE OF CONTENTS                          2
INDEX OF AUTHORITIES                       2
STATEMENT OF FACTS                         4
SUMMARY OF THE ARGUMENT                    6
ARGUMENT AND AUTHORITY                     7
CONCLUSION AND PRAYER                      15
CERTIFICATE OF SERVICE                     16
CERTIFICATE OF COMPLIANCE                  17




                                 2
                           INDEX OF AUTHORITIES


Cases

Abdnor v. State​, 871 S.W.2d 726 (Tex. Crim. App. 1994)                      ​11
Almanza v. State​, 686 S.W.2d 157 (Tex. Crim. App. 1985)                     ​11
Brooks v. State​, 323 S.W.3d 893 (Tex. Crim. App. 2010)                       ​8
City of Keller v. Wilson​, 168 S.W.3d 802 (Tex. 2005)                         ​9
Clayton v. State, ​235 S.W.3d 772 (Tex. Crim. App. 2007)                      ​9
De La Paz v. State​, 279 S.W.3d 336 (Tex. Crim. App. 2009)                   ​14
Devoe v. State​, 354 S.W.3d 457 (Tex. Crim. App. 2011)                       ​14
Dowthitt v. State​, 931 S.W.2d 244 (Tex. Crim. App. 1996)                    ​11
Frost v. State​, 25 S.W.3d 395 (Tex. App.-Austin 2000)                      ​12
Herron v. State​, 86 S.W.3d 621 ( Tex. Crim. App. 2002)                     ​11
Hooper v. State​, 214 S.W.3d 9 (Tex. Crim. App. 2007)                         ​8
Jackson v. Virginia​, 443 U.S. 307 (1979)                              ​8, 9, 15
Ledbetter v. State​, 208 S.W.3d 723 (Tex. App.—Texarkana 2006)               ​11
Malik v. State, ​953 S.W.2d 234 (Tex. Crim. App. 1997)                        ​9
Matlock v. State​, 392 S.W.3d 662 (Tex. Crim. App. 2013)                      ​9
Morris v. State​, 67 S.W.3d 257 (Tex. App.-Houston [1st Dist.] 2001)         ​11
Munoz v. State​, 853 S.W.2d 558 (Tex. Crim. App. 1993)                       ​11
Patrick v. State​, 906 S.W.2d 481 (Tex. Crim. App. 1995)                      ​9
Shuffield v. State​, 189 S.W.3d 782 (Tex. Crim. App. 2003)                   ​13
Simmons v. State,​ 282 S.W.3d 504 (Tex. Crim. App. 2009)                      ​9


                                            3
Vasquez v. State​, 919 S.W.2d 433 (Tex. Crim. App. 1996)        ​12
Williams v. State​, 301 S.W.3d 675 (Tex. Crim. App. 2009)       ​14
Statutes

Tex. R. Evid. 404(b)                                        ​13, 14
Tex. Code Crim. Proc. Art 38.14                                  ​11




                                          4
                           STATEMENT OF FACTS

       In a two-count indictment the State accused Deion Reed of the

aggravated robbery and murder of D. Rossum. The State called twenty-one

witnesses in a three day trial. According to evidence, Reed and brother Torry

helped Brendan Douglas and Korvarsia Skinner plan and execute their

conspiracy. The jury learned that the projectile which mortally wounded

Rossum was fired from a handgun discovered during a search of Reed’s home.

SX 136. Evidence also revealed an incriminating text conversation between

Reed and his conspirators just moments before the crimes. 8 RR 81; SX 104, SX

156. According to Skinner’s testimony, he and the Reed brothers waited in a

getaway car while Douglas lured Rossum to the Signal Hill Apartments. 7 RR

157-175. Then the Reed brothers got out of the car wearing dark hoodies and

took position. 7 RR 175. Moments later, Skinner heard gunfire. 7 RR 176. He

quickly pulled the car around and the four men fled the scene. 7 RR 178-79. On

cross-examination, defense counsel questioned Skinner’s motivations. Counsel

implied that Skinner might say anything to garner leniency from the State. 7 RR

238.




                                         5
      Over objection the State offered evidence of an extraneous offense to

refute the attack on Skinner’s credibility. 7 RR 277-80. The State pointed to

shell casings from a crime-scene on Webster Street which matched those at

Signal Hill. The trial court overruled an objection to the extraneous evidence,

but gave the jury proper limiting instructions before hearing evidence. 8 RR 12.

When a witness to the Webster Street shooting testified at trial she identified

Appellant or possibly his brother as the shooter. 8 RR 13-14, 16-20. 22-28,

48-49. After the State rested Defense moved for directed verdict, which the

trial court denied. 8 RR 89-90. The jury returned a guilty verdict on both

counts and thereafter sentenced Reed to sixty-years in prison. 9 RR 9-10, 49;

CR 122-125.




                                          6
                        SUMMARY OF THE ARGUMENT

      First, the State sufficiently proved all of the necessary elements of

aggravated robbery and murder. Second, the evidence at trial corroborated the

accomplice testimony of K. Skinner and independently connected Reed to the

crimes. Finally, the trial court did not abuse its discretion by admitting relevant

evidence of an extraneous offense because the State offered it to rebut

Appellant’s defensive-theory and to prove his identity.




                                           7
                         ARGUMENT AND AUTHORITY

1) Issue One: ​Viewing the evidence in light most favorable to the verdict,
   any ​rational jury could have found ​Appellant guilty beyond a
   reasonable doubt.


         A. Standard of Review

      A reviewing court must view the evidence in the light most favorable to

the verdict to determine whether any reasonable jury could have found that

the State proved all the essential elements of of murder beyond a reasonable

doubt . ​Brooks v. State​, 323 S.W.3d 893, 917 (Tex. Crim. App. 2010) (Cochran,

J., concurring); ​Jackson v. Virginia​, 443 U.S. 307 (1979). In light of the evidence

in this case, any reasonable jury could have believed beyond a reasonable

doubt that Deion Reed intentionally or knowingly caused the death of D.

Rossum while in the course of committing theft.

      On review deference is given to the fact-finder's duty "to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts." ​Hooper v. State​, 214 S.W.3d 9, 13

(Tex. Crim. App. 2007). Sufficiency of the evidence is measured by the elements

of the offense as defined by a hypothetically correct jury charge. ​Malik v. State,


                                            8
953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

      When some evidence connects the defendant to the offense while other

evidence does not, appellate courts should defer to how the jury viewed the

evidence in support of the verdict. ​Simmons v. State, 282 S.W.3d 504, 508 (Tex.

Crim. App. 2009). A reasonable jury may accept or reject any or all of the

testimony of any witness. ​Matlock v. State​, 392 S.W.3d 662, 673 (Tex. Crim.

App. 2013) (citing ​City of Keller v. Wilson​, 168 S.W.3d 802, 811 (Tex. 2005)). All

evidence, properly or improperly admitted, is reviewed. ​Clayton v. State, ​235

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

      Circumstantial evidence is as probative as direct evidence, and

circumstantial evidence alone can be sufficient to establish guilt. Patrick v.

State​, 906 S.W.2d 481, 488 (Tex. Crim. App. 1995). When the record supports

conflicting inferences, the jury is presumed to have resolved the conflicts in

favor of the verdict, and such a resolution is accorded deference by the

appellate courts.​ Jackson, ​443 U.S. at 319​.

          B. Application & Analysis

      Reed questions the legal sufficiency of the evidence because the State




                                                 9
never proved that he, not his brother, fired the bullets that struck and killed

Rossum. He complains that the evidence merely proves his presence at the

time and place of the crimes. But this position not only ignores the law of

parties, it also undermines the jury’s duty to weigh the abundant evidence of

guilt.

         A jury can draw reasonable inferences from the evidence presented in a

case, and can rely entirely on circumstantial evidence to support a finding of

guilt beyond a reasonable doubt. To support a finding of guilt Reed believes

that the evidence must prove that he, not an accomplice, pulled the trigger. But

that is not an element which the State must plead and prove in a murder trial.

Viewing the evidence in light most favorable to the verdict, ​any ​rational jury

could have found ​Appellant guilty beyond a reasonable doubt on both counts.

For this reason, this court should reject Appellant’s first issue.

2) Issue Two: Did the trial court inflict egregious harm by failing to give
   an accomplice instruction?


           A. Standard of Review

         Testimony of an accomplice will not support a conviction unless




                                            10
corroborated by other evidence connecting defendant to the crime. Tex. Code

Crim. Proc. Art 38.14; ​Herron v. State​, 86 S.W.3d 621, 631 ( Tex. Crim. App.

2002). Although Art. 38.14 requires that accomplice testimony be

corroborated, the law does not specify the amount of evidence needed to do so.

Dowthitt v. State​, 931 S.W.2d 244 (Tex. Crim. App. 1996). Setting aside the

accomplice testimony, a reviewing court must determine whether any of the

remaining evidence at trial connected the defendant to the charged crime.

Ledbetter v. State​, 208 S.W.3d 723,727 (Tex. App.—Texarkana 2006) citing

Munoz v. State​, 853 S.W.2d 558, 559 (Tex. Crim. App. 1993). The

non-accomplice evidence does not have to directly link the defendant to the

crime, nor must it establish guilt beyond a reasonable doubt. ​Id​.

      If appellant did not object to the jury charge at trial, he must show he

suffered actual, egregious harm; theoretical harm alone will not suffice.

Almanza v. State​, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g);

Morris v. State​, 67 S.W.3d 257, 261 (Tex. App.-Houston [1st Dist.] 2001, pet.

ref'd) (citing ​Abdnor v. State​, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994)). The

reviewing court must examine the degree of harm “in light of the entire jury




                                           11
charge; the state of the evidence, including the contested issues and weight of

probative evidence; the argument of counsel; and any other information

revealed by the record of the trial as a whole.” ​Frost v. State​, 25 S.W.3d 395,

400 (Tex. App.-Austin 2000, no pet.) (citing ​Alamanza​, 686 S.W.2d at 171). For

charge error to result in egregious harm, it must affect the very basis of the

case, deprive the defendant of a valuable right, or vitally affect a defensive

theory. But in order to preserve error relating to the jury ​charge there must be

either an objection or a requested charge. ​See Vasquez v. State​, 919 S.W.2d 433,

435 (Tex. Crim. App. 1996).

      B. Application & Analysis

      Reed claims that the State relied exclusively on accomplice testimony to

secure his conviction. He says that the State could not have proven his

involvement in the crime without Skinner’s testimony. Thus, Reed allegedly

suffered egregious harm by the court’s failure to include an accomplice

instruction in the jury charge. But at no time in the record did Reed object or

even request the instruction he now claims the jury should have received.

Additionally, Reed’s argument ignores the other evidence at trial which




                                          12
corroborated Skinner’s account and independently tied him to the crimes.

      The State offered phone records which revealed how Reed and his

conspirators coordinated their premeditated crimes. 7 RR 131, 271; 8 RR

82-89; SX 104-105. Also, shell casings from a crime-scene on Webster Street

matched those found at Signal Hill. A witness to the Webster Street shooting

testified at trial and identified Appellant as a possible shooter. 8 RR 17-20.

22-28, 48-49; SX 151. The assertion that the State relied exclusively on

accomplice testimony is false. Reed fails to show how he suffered any actual,

egregious harm. For all of these reasons this court should reject Appellant’s

second issue.

3) Issue Three: Did the trial court abuse its discretion by admitting
   relevant evidence of an extraneous offense?


         A. Standard of Review

      A trial court’s decision to admit evidence of an extraneous offense over

objection is reviewed for an abuse of discretion. ​Shuffield v. State​, 189 S.W.3d

782, 793 (Tex. Crim. App. 2003). Texas Rule of Evidence 404(b) prohibits the

admission of extraneous conduct to prove a person’s character or to show that




                                          13
the person acted in conformity therewith. ​See Tex. R. Evid. 404(b). However,

such evidence may be admissible when it has relevance apart from character

conformity. ​Devoe v. State​, 354 S.W.3d 457, 469 (Tex. Crim. App. 2011).

      Evidence of extraneous crimes may be admissible to show motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake. ​See Tex. R. Evid. 404(b). Extraneous conduct may also be admissible

to rebut defensive theories raised by the defense. ​See Williams v. State​, 301

S.W.3d 675, 687 (Tex. Crim. App. 2009). Importantly, Rule 404(b) is a rule of

inclusion rather than exclusion. ​De La Paz v. State​, 279 S.W.3d 336, 343 (Tex.

Crim. App. 2009). Thus, the rule only excludes evidence that is offered solely to

prove bad character. ​Id​. Whether extraneous evidence has relevance apart

from character conformity is a question for the trial court. ​Id​.

         B. Application & Analysis

      In his third issue, Reed contends that the trial court erred by admitting

evidence of extraneous conduct because it lacked relevance. Next, Reed claims

that the evidence should have been suppressed because no jury could have

found him guilty of the extraneous offense. Finally, in his fifth issue Reed says




                                            14
the trial court should have suppressed the extraneous evidence despite its

relevance to prevent unfair prejudice to his defense.

      But the trial court rejected all of these points. First, the court

acknowledged the relevance of the proffered evidence, noting how the two

incidents shared similarities and happened less than a month apart. 7 RR

280-81. The court also noted how the extraneous evidence rebutted counsel’s

attempts to discredit Skinner’s testimony on cross-examination. RR 281.

Furthermore, the evidence at trial permitted a reasonable jury to find Reed

guilty of the extraneous offense. The evidence placed Reed and his brother at

both crime scenes, and police recovered the murder weapon inside their home.

8 RR 17-20, 22-28, 48-49; SX 151. Reed says that the evidence insufficiently

supports his conviction because the evidence also incriminated his brother.

But when the record supports conflicting inferences, the jury is presumed to

have resolved the conflicts in favor of the verdict, and such a resolution is

accorded deference by the appellate courts. ​Jackson, ​443 U.S. at 319. Finally,

the trial court reasoned that proper limiting instructions prevented any unfair

prejudice to Reed’s defense. 8 RR 281-82.




                                         15
      For these reasons this court should reject Appellant’s third, fourth, and

fifth issues.

                          CONCLUSION AND PRAYER

      In conclusion, Reed’s conviction should be affirmed. There was ample

evidence from which a reasonable fact-finder could find Reed guilty of both

counts beyond a reasonable doubt.           Furthermore, the evidence at trial

corroborated the accomplice testimony of K. Skinner and independently

connected Reed to the crimes. Finally, the trial court did not abuse its

discretion by admitting relevant evidence of an extraneous offense because the

State offered it for permissible reasons.

      For the foregoing reasons, the State prays that the judgment of the Trial

Court be affirmed.

                                            Respectfully Submitted,

                                            /s/John J. Roberts
                                            Assistant Criminal District Attorney
                                            Texas Bar No. 24070512
                                            Gregg County, Texas
                                            101 East Methvin St., Suite 333
                                            Longview, Texas 75601
                                            Telephone: (903) 236–8440
                                            Facsimile: (903) 236–3701

                                            16
                                             Email: john.roberts@co.gregg.tx.us




                           CERTIFICATE OF SERVICE

     I certify that a true and correct copy of the above and foregoing has been
forwarded to counsel of record by e-filing service to:

      Jeff Jackson, Appellate Counsel
      jefftjacksonlaw@gmail.com

on or about March 28, 2018.

                                             /s/​John J. Roberts


                         CERTIFICATE OF COMPLIANCE


      I certify that the foregoing document complies with Texas Rules of Appellate
Procedure, Rule 9 regarding length of documents, in that exclusive of caption,
identity of parties and counsel, statement regarding oral argument, table of
contents, index of authorities, statement of the case, statement of issues presented,
statement of jurisdiction, statement of procedural history, signature, proof of
service, certification, certificate of compliance, and appendix, it consists of ​2,080
words.

                                             /s/​John J. Roberts




                                            17
