                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-14-00517-CR


LASHYLA ALVAREZ                                                   APPELLANT
SCHOONOVER

                                      V.

THE STATE OF TEXAS                                                     STATE


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     FROM CRIMINAL DISTRICT COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1338474D

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      A jury convicted Appellant Lashyla Alvarez Schoonover of murder and

assessed her punishment at thirty years’ confinement and a $10,000 fine. See

Tex. Penal Code Ann. § 19.02(b)(1), (c) (West 2011). The trial court sentenced

her accordingly. In two points, Schoonover argues that the trial court erred by

      1
      See Tex. R. App. P. 47.4.
not giving a jailhouse-witness instruction and by admitting hearsay testimony

over the objection of Schoonover’s trial counsel. We will affirm.

                            II. FACTUAL BACKGROUND

      On July 15, 2013, Schoonover and three other individuals—Jamie Corley,

Chauncey McCallum, and Richard Hernandez—spent the day together driving

around the Dallas-Fort Worth Metroplex.         The group ran several errands,

including buying methamphetamine and Xanax. As nighttime approached, the

group made their way to an apartment complex in Fort Worth. Hernandez went

into an apartment where methamphetamine was being sold while the others

waited in the car.2 After doing drugs inside the apartment, Hernandez went back

to the car, and the group began to leave the apartment complex. As they were

leaving, Hernandez told McCallum that Lawrence Gomez was inside the

apartment. This upset McCallum as he believed that Gomez had recently pulled

a gun on one of his friends. McCallum ordered Hernandez to drive the car back

to the apartment; Hernandez complied. Hernandez parked the car again at the

complex, and Hernandez, McCallum, and Schoonover discussed how they could

get Gomez to exit the apartment. Ultimately, they decided to ask Sam Chrouk,

one of the individuals selling drugs out of the apartment, to try to get Gomez out

of the apartment.



      2
        While Hernandez was inside the apartment, Schoonover may have briefly
exited the car to use the restroom.


                                         2
      Hernandez went back to the apartment and asked Chrouk to speak with

him outside. The two of them went outside and Hernandez told Chrouk that one

of the individuals in the car had a problem with one of the individuals inside the

apartment.3    Chrouk then spoke with McCallum, who told Chrouk that the

problem could be addressed either outside or would be dealt with inside the

apartment. As Chrouk did not want any trouble inside the apartment, he went

into the apartment and told the people present that McCallum had a problem with

one of them and that that person needed to go outside to address it. When no

one inside the apartment did anything, Chrouk went back outside.

      According to Chrouk, McCallum and Schoonover came up to him, and he

explained that no one was coming out of the apartment and that he did not want

any trouble.    Gomez then walked out of the apartment and approached

McCallum and Schoonover. Chrouk testified that he saw Gomez reach out to

shake McCallum’s hand. Chrouk then turned and began walking back to the

apartment when he heard two gunshots followed by multiple gunshots; Chrouk

could not identify the shooter. Chrouk then ran back to the apartment; Gomez

also made his way back to the apartment where he opened the door and

collapsed. Gomez died from two gunshot wounds he had sustained.

      Corley, one of the individuals inside the car, also testified about the events

leading up to Gomez’s murder. Corley testified that McCallum exited the car

      3
      Gomez’s name was not mentioned during the conversation between
Hernandez and Chrouk.


                                         3
after a conversation with Chrouk. She assumed that McCallum was carrying a

gun as she had seen him with one earlier in the day. Corley testified that she

saw McCallum yelling at someone but she could not see who. According to

Corley, Schoonover then reached into her purse, pulled out a gun, and exited the

vehicle. Shortly after Schoonover exited the vehicle, Corley heard “four or five”

gunshots but did not see who fired the gun. Corley stated that when Schoonover

and McCallum returned to the vehicle they were laughing and high-fiving.

      Corley testified that later that evening she, Schoonover, and Hernandez

went back to Schoonover’s apartment and smoked methamphetamine. Corley

fell asleep and awoke to hear Schoonover asking Hernandez whether anything

needed to be done about Corley because Schoonover feared that Corley might

“snitch.” Hernandez vouched for Corley, telling Schoonover that nothing needed

to be done.    Corley testified that the next day she had a conversation with

Schoonover where Schoonover stated that she had shot Gomez because

McCallum “wasn’t going to do nothing.” Schoonover told Corley that she started

shooting first and that McCallum fired shots afterward.

      The day after the shooting, the police, in response to a robbery call,

stopped a vehicle in which McCallum was a passenger. As the vehicle smelled

strongly of marijuana, the police searched it and found three handguns, including

a Beretta nine millimeter. Schoonover had purchased the Beretta nine millimeter

eight days prior to Gomez’s shooting.       The police recovered from the crime

scene nine .40 caliber bullet casings and three nine millimeter bullet casings. Dr.


                                        4
Nazim Peerwani, Tarrant County’s chief medical examiner, testified that Gomez

died from two fatal gunshot wounds, one to the chest and one to the back. Lillian

Lau, a senior forensic scientist with the Fort Worth Police Department’s crime

lab, testified that the two bullets recovered from Gomez’s body were both fired by

Schoonover’s Beretta nine millimeter.

              III. JURY INSTRUCTION REGARDING JAILHOUSE WITNESS

      In her first point, Schoonover argues that the trial court erred by not

submitting a jury instruction regarding the testimony of a jailhouse witness as set

out in article 38.075 of the Texas Code of Criminal Procedure.           Schoonover

argues that the testimony of Kristina Harris, an inmate who was incarcerated with

Schoonover while Schoonover awaited trial, warranted a jailhouse-witness

instruction. Harris testified that Schoonover typically did not like to talk about her

case but that on Harris’s last day in county jail, an opportunity arose for the two

of them to discuss it. While Harris was saying goodbye to Schoonover, Harris

mentioned that the last time she had been in the holding cell there was a woman

she did not like named “Jaime.” After discussing the physical characteristics of

“Jaime,” Schoonover realized that Harris was referring to Jamie Corley, and

Schoonover told Harris that Corley was the “prosecutor’s whole case” against

her. According to Harris, Schoonover then asked her if she knew where Corley

lived because she “want[ed] her gone.” Harris also testified that Schoonover told




                                          5
her that she had misgivings about Corley’s presence during Gomez’s murder but

that she had been reassured that Corley’s presence was fine.4

      The trial court did not include a jailhouse-witness instruction in its jury

charge. Schoonover did not object to the charge that was submitted to the jury.

                            A. Standard of Review

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. If error

occurred, whether it was preserved determines the degree of harm required for

reversal. Id. Unpreserved charge error warrants reversal only when the error

resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.

on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).            The

appropriate inquiry for egregious harm is a fact specific one that must be

performed on a case-by-case basis. Gelinas v. State, 398 S.W.3d 703, 710

(Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App.

2011).

      In making an egregious harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

      4
      The identity of the individual who reassured Schoonover that Corley’s
presence was fine is unclear from Harris’s testimony.


                                       6
including the contested issues and weight of probative evidence, the argument of

counsel and any other relevant information revealed by the record of the trial as a

whole.” Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at

708–10 (applying Almanza). Errors that result in egregious harm are those “that

affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly

more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at

172). The purpose of this review is to illuminate the actual, not just theoretical,

harm to the accused. Almanza, 686 S.W.2d at 174.

                                    B. The Law

      Article 38.075 of the Texas Code of Criminal Procedure, referred to as the

jailhouse-witness rule, provides:

      (a) A defendant may not be convicted of an offense on the testimony
      of a person to whom the defendant made a statement against the
      defendant’s interest during a time when the person was imprisoned
      or confined in the same correctional facility as the defendant unless
      the testimony is corroborated by other evidence tending to connect
      the defendant with the offense committed. In this subsection,
      “correctional facility” has the meaning assigned by Section 1.07,
      Penal Code.

      (b) Corroboration is not sufficient for the purposes of this article if the
      corroboration only shows that the offense was committed.

Tex. Code Crim. Proc. Ann. art. 38.075 (West Supp. 2015).

      A trial court must sua sponte include an article 38.075 jailhouse-witness

instruction when applicable to the case. Phillips v. State, 463 S.W.3d 59, 65

(Tex. Crim. App. 2015); Brooks v. State, 357 S.W.3d 777, 781 (Tex. App.—


                                          7
Houston [14th Dist.] 2011, pet. ref’d). A trial court errs by not giving a jailhouse-

witness instruction when a witness testifies to a statement made by a defendant

to the witness when both were confined in the same correctional facility and the

statement is against the defendant’s interest. Phillips, 463 S.W.3d at 65; Brooks,

357 S.W.3d at 781.

      When a trial court errs by not giving a jailhouse-witness instruction, a

reviewing court must eliminate the jailhouse witness’s testimony from

consideration and then examine the remaining portions of the record to see if

there is evidence connecting the defendant with the commission of the crime.

Ruiz v. State, 358 S.W.3d 676, 680 (Tex. App.—Corpus Christi 2011, no pet.);

Schnidt v. State, 357 S.W.3d 845, 851 (Tex. App.—Eastland 2012, pet. ref’d);

Brooks, 357 S.W.3d at 782. The remaining evidence is “sufficient corroboration if

it shows that rational jurors could have found that it sufficiently tended to connect

the accused to the offense.” Ruiz, 358 S.W.3d at 680 (quoting Smith v. State,

332 S.W.3d 425, 442 (Tex. Crim. App. 2011)).           Under the egregious harm

standard, the omission of a jailhouse-witness instruction is generally harmless

unless the corroborating evidence is so unconvincing in fact as to render the

State’s overall case for conviction clearly and significantly less persuasive.

Brooks, 357 S.W.3d at 781.

                     C. Application of the Law to the Facts

      Harris’s testimony concerns statements against Schoonover’s interest that

Schoonover allegedly made to her while the two were confined in a correctional


                                         8
facility. As such, a jailhouse-witness instruction should have been part of the jury

charge, and the trial court erred by not including it.5 See Phillips, 463 S.W.3d at

65; Brooks, 357 S.W.3d at 781. As Schoonover did not object to the jury charge,

we will reverse only if the error resulted in egregious harm. See Nava, 415

S.W.3d at 298; Almanza, 686 S.W.2d at 171; Tex. Code Crim. Proc. Ann. art.

36.19.

      Here, there is ample evidence—apart from Harris’s testimony—to connect

Schoonover to Gomez’s murder. Corley testified that she heard gunshots shortly

after Schoonover pulled a gun from her purse and exited the car. Corley also

testified that Schoonover told her that she had shot Gomez. Chrouk testified that

he saw Gomez approach Schoonover and McCallum right before Gomez was

shot. Most notably, the two fatal bullets recovered from Gomez’s body matched

Schoonover’s Beretta nine millimeter that she had purchased just eight days

before the shooting.

      Rational jurors could have found that this evidence sufficiently connected

Schoonover to Gomez’s murder.        See Ruiz, 358 S.W.3d at 680. As there is

corroborating evidence that connects Schoonover to Gomez’s murder, the trial

court’s failure to give a jailhouse-witness instruction did not egregiously harm

Schoonover. See Brooks, 357 S.W.3d at 782–84 (holding that the trial court’s

failure to give a jailhouse-witness instruction did not egregiously harm the

      5
       The State seems to recognize that the trial court erred, as its brief delves
straight into a harm analysis.


                                         9
defendant where there was corroborating evidence tending to connect him to the

crime). We overrule Schoonover’s first point.

                              IV. HEARSAY OBJECTION

        In her second point, Schoonover argues that the trial court erred by

admitting certain testimony over her counsel’s hearsay objection. She points to

the testimony of Detective William Paine, a detective in the Fort Worth Police

Department’s homicide unit, who interviewed Corley approximately a month after

the shooting. At trial, the State asked Detective Paine, “[W]hat did [Corley] tell

you?”     Schoonover’s counsel objected on hearsay grounds.             The State

responded that this testimony was being offered as a prior consistent statement

to rebut an implied charge made by Schoonover’s counsel during Corley’s cross-

examination that Corley had recently fabricated her testimony.

        The trial court, after taking a recess to review the transcript of Corley’s

cross-examination, overruled the hearsay objection and granted Schoonover’s

request for a running objection to the alleged hearsay testimony.        Detective

Paine went on to testify about the statements Corley made to him. Schoonover

admits that Detective Paine’s recitation of what Corley told him is consistent with

Corley’s trial testimony, with only one difference—Corley told Detective Paine

that she did not see Schoonover carrying a gun, while she testified at trial that

she did see Schoonover carrying a gun.




                                         10
                                    A. The Law

      In general, a witness’s prior statement that is consistent with the witness’s

trial testimony is inadmissible hearsay. Tex. R. Evid. 613(c); Bosquez v. State,

446 S.W.3d 581, 585 (Tex. App.—Fort Worth 2014, pet. ref’d) (mem. op.). A

prior statement is admissible, however, to rebut an express or implied charge

against the declarant of recent fabrication. Tex. R. Evid. 801(e)(1)(B); Bosquez,

446 S.W.3d at 585.       “[T]here need be only a suggestion that the witness

consciously altered his testimony in order to permit the use of earlier statements

that are generally consistent with the testimony at trial.” Hammons v. State, 239

S.W.3d 798, 804 (Tex. Crim. App. 2007) (quoting United States v. Casoni, 950

F.2d 893, 904 (3d Cir. 1991)). The fact that there needs to only be a suggestion

of conscious alteration or fabrication gives the trial court substantial discretion to

admit prior consistent statements. Id. at 804–05. To determine whether the

cross-examination of a witness establishes an implied charge of recent

fabrication, we focus on the “purpose of the impeaching party, the surrounding

circumstances, and the interpretation put on them by the [trial] court.” Id. at 808

(quoting Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 406,

at 187 (2nd ed. 1994)). We consider the totality of the record and may look to

such clues as voir dire, opening statements, and closing arguments. Bosquez,

446 S.W.3d at 585.

      We review a trial court’s determination that a prior consistent statement is

admissible under an abuse of discretion standard. Hammons, 239 S.W.3d at


                                         11
806. A trial court does not abuse its discretion as long as the decision to admit

the evidence is within the zone of reasonable disagreement. Montgomery v.

State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990) (op. on reh’g).

                     B. Application of the Law to the Facts

        Schoonover argues that Detective Paine’s testimony regarding Corley’s

prior statement should not have been admitted because Corley’s motive to

fabricate her testimony was not recent, but rather was created at the outset of the

case.    The State counters that Schoonover implied that Corley’s fabrication

occurred after her statement to Detective Paine.        The State points to the

following questions asked by Schoonover’s counsel during Corley’s cross-

examination:

        Q.   [W]hat other parts of your story today are — are different than
             what you told detectives a year ago?

             ....

        Q.   Okay. I mean, you have talked to [McCallum] about what
             happened, didn’t you?

        A.   I told him that [Schoonover] was putting the blame on him and
             that was it, so if they talk to you, talk.

        Q.   Okay. And so I mean you and [McCallum] came up with this
             theory about [Schoonover] as a way to help protect
             [McCallum]; isn’t that right?

        A.   No. No. Not at all.

        Q.   So this whole story here, this isn’t your efforts to protect
             somebody that you cared about, whether it was — I guess just
             as friends or somebody that was more than that, but this was



                                        12
            your effort to come up with a way to try to push some of this
            blame off of [McCallum]?

      During closing, Schoonover’s counsel once again suggested that Corley

fabricated her testimony to protect McCallum and reiterated that Corley’s

testimony differed from her earlier statement to Detective Paine. Schoonover’s

counsel told the jury:

      Don’t get sucked into the — into Corley’s story.

             ....

      Do you really believe that there wasn’t something more than what
      she told you [was] going on between her and [McCallum]? . . . You
      have got a guy in jail charged with murder, you are talking to him on
      the phone, what do you think you talk about? You don’t talk about
      sports and the Rangers and the Mavericks and everything else. You
      are talking about what do we have to do to get this squared away for
      [McCallum] and [Hernandez]? What do we have to do — well, let’s
      make it easy. Let’s throw it on [Schoonover].

             ....

      But the biggest part of [Corley’s] testimony is what she told you this
      time versus what she didn’t tell Detective Paine.

      The record reflects that Schoonover’s counsel implied that Corley had

recently fabricated her testimony.     See Hammons, 239 S.W.3d at 807–08

(closing argument and cross-examination implied that witness had recently

fabricated her testimony). We thus hold that the trial court did not abuse its

discretion in admitting Detective Paine’s testimony concerning Corley’s prior

consistent statements.




                                       13
      The trial court did err, however, in allowing Detective Paine to testify that

Corley had told him that she did not see Schoonover carrying a gun on the night

of Gomez’s murder. That statement was not a prior consistent statement—as

Corley testified that she saw Schoonover carrying a gun on the night of Gomez’s

murder—and should have been excluded as hearsay. While the trial court erred

in admitting this hearsay testimony, such error was harmless, as the statement

was beneficial to Schoonover in that it undermined Corley’s credibility and

suggested that Schoonover was not carrying a gun when she got out of the car to

confront Gomez. See Tex. R. App. P. 44.2(b).

      We overrule Schoonover’s second point.

                                 V. CONCLUSION

      Having overruled Schoonover’s two points, we affirm the trial court’s

judgment.



                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: DAUPHINOT, GARDNER, and WALKER, JJ

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 10, 2015




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