                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-08-002-CR


ROGER EUGENE FAIN A/K/A                                              APPELLANT
ROGER EUGENE FAIN, JR.

                                        V.

THE STATE OF TEXAS                                                        STATE

                                    ------------

           FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      A jury convicted Appellant Roger Eugene Fain a/k/a Roger Eugene Fain,

Jr. of capital murder, and the trial court sentenced him to imprisonment for life.

Appellant brings four points on appeal, challenging the legal and factual

sufficiency of the evidence and evidentiary rulings and arguing jury charge error.




      1
          … See Tex. R. App. P. 47.4.
Because the trial court committed no reversible error, we affirm the trial court’s

judgment.

                           Sufficiency of the Evidence

      In his first point, Appellant challenges both the legal and factual

sufficiency of the evidence to support his conviction for capital murder. He

argues that the evidence is both legally and factually insufficient to show (1)

that he killed Linda Donahew, the deceased, (2) that her death was caused

intentionally, and (3) that her death occurred in the course of committing or

attempting to commit the offense of aggravated sexual assault. Although he

raises his complaints of legal and factual sufficiency in a single point, the Texas

Court of Criminal Appeals instructs us that we should address them separately.2

      The jury heard the following evidence. Bonnie Bishop shared a house

with her sister, Donahew. On June 1, 1987, Bishop left work and arrived home

at approximately 8:00 p.m. She entered the house to find her sister’s nude and

blood-covered body lying on the floor in a bedroom closet.

      The autopsy revealed that Donahew had died from manual strangulation

and that a secondary cause of death was a stab wound to her neck.              The

postmortem examination also revealed several hairs found clinched in her




      2
          … Laster v. State, 275 S.W.3d 512, 519 (Tex. Crim. App. 2009).

                                        2
hands, DNA artifacts in her mouth, and three foreign pubic hairs in the genital

area.

        Approximately fourteen years later, in August 2001, a DNA sample was

taken from Appellant, who was incarcerated for an unrelated crime.         The

sample was entered into the Combined DNA Index System (CODIS) of the

Texas Department of Public Safety (DPS). Four years later, in October 2005,

the cold case of Donahew’s murder was reopened, and the DNA samples

acquired during the examination of her body were uploaded into CODIS and

were found to match the DNA profile of Appellant.

        There was no direct evidence of Appellant’s involvement in Donahew’s

murder.    At trial, the State relied on the DNA evidence, testimony from a

witness who saw a truck similar to that owned by Appellant at the time of the

offense parked in front of Donahew’s house at the time of the offense, the

testimony of an inmate, Danny Smith, who claimed that Appellant had

confessed to him in jail, testimony that Donahew had previously been seen in

the company of Appellant, and testimony that on the day of her death she had

said that she was worried about meeting someone who wanted to look at a

truck she was selling.

        Dr. Nizam Peerwani, the medical examiner who performed the autopsy

and forensic examination of Donahew’s body, testified that he took oral swabs

                                      3
from her mouth and that they contained DNA material. He testified that he was

unable to determine exactly when the DNA had been deposited in her mouth.

Kelly Solis testified that she was a DNA analyst for the DPS CODIS lab in

Austin, Texas. She testified that the DNA samples from the oral swabs taken

by Dr. Peerwani matched Appellant’s DNA profile.

      Constance Patton testified that she was a senior forensic biologist and

DNA technical leader for the medical examiner’s office crime laboratory in Fort

Worth. She testified that she had examined the samples from the oral swabs

taken by Dr. Peerwani and that the results of her examination showed that the

samples contained DNA material consistent with the DNA of Donahew and a

mixture containing one DNA sample consistent with that of Appellant and a

sample of male DNA foreign to both Donahew and Appellant. Patton testified

that it could not be determined whether Appellant’s DNA had been contributed

before or after the other male DNA or how long it had been present. She also

testified that she had tested a portion of a towel taken from Donahew’s house.

The towel tested presumptively for blood and also for a mixture of DNA from

Donahew.    She testified that a sample of male DNA from Ronald Nix, a

boyfriend of Donahew, could not be excluded from matching the sample on the

towel. Patton also found a sperm stain on the comforter from Donahew’s bed,

the DNA profile of which also matched Nix’s sample.

                                      4
      Dr. Peerwani had found several hairs clutched in Donahew’s hand during

the postmortem examination.      One of the hairs was identified as dog hair.

Other hairs were consistent with either the hair of Donahew or that of her

sister, Bishop. One hair, however, was not matched to Donahew, Bishop, or

Appellant.

      Susan Kenney testified that in 1987 she had been working as a serologist

in the Fort Worth Police Department Crime Lab. She examined the evidence

taken by Dr. Peerwani as part of the examination of Donahew’s body. She

testified that part of the protocol of the examination was to comb the pubic hair

area of Donahew. In this case, the combing resulted in finding three hairs that

were not similar to those of Donahew.

      Detective Jim Ford testified that he had requested DNA testing of the

unknown pubic hair found on Donahew’s body. The test showed that Nix could

not be eliminated as a contributor of the hair.

      Luke Kortegast, who testified by videotaped deposition because he was

on active duty in the military and scheduled to be deployed overseas, testified

that at the time of the offense, when he was seventeen years old, he lived with

his parents next door to Donahew, whom he described as attractive. He often

saw a white pickup truck parked at Donahew’s house from the winter of 1986

through the early spring of 1987.     He described the truck as a mid-to-late

                                       5
1970s white pickup truck with large tires and a raised suspension. He thought

that it was a four-wheel drive truck and in “pretty good shape.” He testified

that on occasion the truck had been at the house overnight.          He did not

remember the trucks having a toolbox or a PVC pipe attached to its bed.

      He described the driver as a white male, approximately six feet tall and

weighing between 175 and 200 pounds, with long dark brown hair and a beard

that ranged from a few days’ stubble to a full beard. Kortegast testified that

the man usually wore a baseball cap and aviator-type sunglasses.

      At some point in the spring, Kortegast stopped seeing the truck at

Donahew’s house, but he testified that he did see it parked in the driveway one

more time on the day of Donahew’s murder. He testified that the truck was in

the driveway at approximately 10:30 a.m. the day of her death. He was unable

to identify Appellant as the driver of the truck, either at trial or from a photo

spread. Kortegast also testified that Donahew had frequent visitors in addition

to the bearded man.

      Ernest Fain, Appellant’s brother, testified that in 1987, Appellant drove

a mid-1970s white Ford pickup truck and that the truck had a black tool box

and PVC piping attached to its bed. He described it as a standard truck, not a

raised four-wheel-drive vehicle. He also testified that he had seen Appellant

approximately a dozen times during 1986 and 1987 and that he had never

                                       6
known Appellant to have a beard. He also testified that the pickup was “very

beat up.”

      Sheila Nelson testified that she lived next door to Donahew in 1987. On

the day of Donahew’s murder, Nelson and her husband left the house at

approximately 5:15 p.m. to take a walk. They noticed a white Ford pickup

truck parked on the street “not in front of my house and not in front of Linda’s

but kind of in between the two.” She testified that it was an older model truck

with a tool box. The truck was still there when she returned from her walk

about fifteen to twenty minutes later. She and her husband went out to eat,

and when they returned at about 8:30 p.m., the pickup was gone. Nelson

testified that Donahew had had a lot of friends and quite a bit of company.

      Bishop, Donahew’s sister, testified that in November 2005 she had been

shown a photo spread containing Appellant’s photograph. After looking at it

for approximately twenty minutes, she had told Detective Ford that she did not

recognize anyone in it. After the photo array was shown to her other sister,

however, Bishop asked to see it again, and she then told Ford that it looked like

someone who had come up to Donahew in a restaurant and bar called John B’s.

Bishop also testified that Donahew had broken up with Nix some time before

her death.




                                       7
      Donald Thweatt testified that in 1987 he owned two horses, which he

stabled at Braddock’s Stables in Arlington.   Around June 1, 1987, he saw

Donahew, who also kept horses there, at the stables. She was not driving her

usual vehicle but was with a male in a 1970s white Ford pickup. He described

the man as being about six feet tall and weighing around 180 pounds with

shoulder-length hair and glasses.   On cross examination, Thweatt said that

Donahew and the man were unloading clear plastic bags of cedar shavings. He

also described the man as having an untrimmed and unkempt beard. Thweatt

testified that he could not remember the exact date, but that it was “sometime

in the late spring of 1987.”

      Michael Higham testified that in the late spring and summer of 1987, he

was the detail shop manager of Pleasant Ridge Car Wash in Arlington. In the

late spring or early summer of 1987, Donahew took her car in for detailing.

When he had finished with the car, he went to the horse stables to pick her up

and take her back to her car. She was with a man whom he identified as

Appellant. Higham drove both the man and Donahew back to pick up her car.

      Arlington police officer William Zimmerman testified that in August 1987,

he had interviewed Michael Higham and that Higham had told him that on the

day he went to pick up Donahew at the stables, she was not there when he

arrived. Higham had talked to Ms. Braddock for a few minutes until Donahew

                                      8
arrived with a white male who was driving a pale blue 1973 or 1974 pickup

truck with wide spoked wheels.

       Danny Smith, a sixty-three-year-old inmate who at the time of trial was

serving forty-five years’ confinement for involuntary manslaughter, enhanced

to a habitual offense, testified that he knew Appellant from having been in

prison with him. In 2005, while they were housed in the same cell block of the

Eastham Unit, Appellant told him that Arlington detectives had visited him and

had taken mouth swabs for DNA purposes. After the visit, Appellant started

“acting in an excited type of manner.” Appellant told Smith that he had been

having sex with Donahew and had unintentionally strangled her during sex.

Smith claimed that Appellant told him that the strangulation was part of the sex

act.

       Smith admitted that he was worried about the possibility of dying in

prison and that he had lost various appeals in his case, up to and including his

appeals in federal court and the United States Supreme Court.           He also

admitted that he had made contact with the Tarrant County District Attorney’s

office regarding testifying against Appellant, calling himself a “crucial State’s

witness” and offering his testimony in exchange for benefits to him, including

help with his sentence. He testified that he had wanted a guarantee in writing

of help “in this and possibly other offenses currently unsolved.”       He also

                                       9
admitted to having offered himself as a State’s witness in other cases.       In

exchange, he had asked to be removed from his current prison unit and placed

in a unit with better medical facilities. He also admitted that he had, in fact,

been moved to a geriatric medical facility in the Terrell Unit.

      Smith testified that when he was interviewed by Appellant’s trial counsel,

he had told them that he did not know why he had been brought to Tarrant

County and that he did not have any information that would help the State

regarding Appellant’s alleged killing of Donahew. Smith also denied knowing

that one of Appellant’s attorneys was, in fact, an attorney. Later, however,

Smith admitted that he had previously written to the same attorney requesting

help in his case. Smith testified that Appellant had shared news articles from

newspapers and from the internet about the Donahew murder case.

      Ronald Nix testified that he had dated Donahew from February 1987 until

her death. In May 1987, he and Donahew had taken a vacation together to

Mexico. A picture taken at the time of the trip showed that in May 1987, Nix

had dark, curly hair and wore a full beard. He also testified that he had seen

Donahew on the Friday preceding her death. He testified that shortly before her

death, he had been at a club with Donahew and had seen her talking with a

man whom Nix identified as Appellant. Nix testified that Donahew had given




                                       10
Appellant her phone number. Nix also admitted that he had been at Braddock

Stables with Donahew in May 1987.

      To recap, Danny Smith testified that Appellant had admitted strangling

Donahew, albeit during consensual sexual activity. The medical examiner’s

evidence showed that stabbing was a secondary cause of death. The jury was

free to believe or disbelieve Appellant’s description of the sexual activity as

consensual, and the fact that Donahew was stabbed was some evidence that

the sexual activity was not consensual. Corroborating evidence includes the

evidence that Appellant’s DNA was found in Donahew’s mouth, Nix’s

testimony that he had seen Donahew talking to Appellant in a bar, and Nelson’s

testimony that a truck similar to Appellant’s had been parked on the street near

Donahew’s house after 5:00 p.m. on the day of her death. This evidence tends

to connect Appellant to Donahew’s murder. Applying the appropriate standard

of review and viewing the evidence in the light most favorable to the

prosecution,3 we hold that a rational trier of fact could have found the essential

elements of capital murder in the course of committing aggravated sexual

assault beyond a reasonable doubt.




      3
      … See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

                                       11
      In determining the factual sufficiency of the evidence, we recognize that

most of the evidence is equivocal. Appellant’s DNA was found in Donahew’s

mouth, but unidentified DNA was also present in her mouth, and Nix’s DNA

was found in a semen stain on the bed’s comforter and on a towel. There is

no way to know when the DNA samples were deposited or the order in which

they were deposited. Nix’s hair, but not Appellant’s, was found in a combing

of Donahew’s pubic hair. Additionally, Nix’s testimony that he was dating

Donahew at the time of her death was disputed by her sister’s testimony that

Donahew had broken up with Nix.        A photograph of Nix from May 1987

showed that he had a beard, and there was testimony that Appellant had never

worn a beard. A neighbor saw a man with a beard visiting Donahew’s house

regularly and testified that the man drove a white pickup that was in good

shape, unlike the testimony regarding Appellant’s pickup.        The neighbor

testified that there was a period of time when the man did not come to

Donahew’s house but that the pickup was in the driveway around 10:30 the

morning she was killed.

      Although there was testimony that Donahew had been with a man at

Braddock Stables in late spring or early summer, Nix admitted that he had been

at the stables with her in May 1987. Officer Zimmerman testified that Michael

Higham had told him that Donahew had arrived in a pickup with a man.

                                      12
Higham testified that he saw Donahew and a man unloading clear plastic bags

of cedar shavings.      The witnesses could have been testifying about two

different men or two different occurrences with the same man.

      Smith’s testimony was corroborated by the evidence of the presence of

a pickup similar to the description of Appellant’s pickup outside Donahew’s

house on the evening she was killed and the presence of Appellant’s DNA in her

mouth. The jury apparently believed that Appellant had confessed to Smith but

did not believe that Appellant had engaged in consensual sexual activity with

consensual autoerotic strangulation.4 The fact that Donahew was also fatally

stabbed is evidence that undermines Appellant’s claim of consent. “The jury,

as the exclusive judge of the credibility of the witnesses and the weight to be

given their testimony, may accept all, part or none of the testimony of any one

witness in determining the facts proved.” 5 Because stabbing was a secondary

cause of death, and Donahew was alive when she was stabbed, according to

the medical examiner’s testimony, the strangulation and stabbing occurred in

close temporal proximity.     It was reasonable for the jury to believe that

Appellant had told Smith that he had strangled Donahew and to believe that

Appellant was truthful about the strangulation, but also reasonable for the jury


      4
          … See Johnson v. State, 23 S.W.3d 1, 8, 9 (Tex. Crim. App. 2000).
      5
          … Johnson v. State, 503 S.W.2d 788, 793 (Tex. Crim. App. 1974).

                                      13
to disbelieve Appellant’s claim that the sexual activity and the strangulation

were consensual. And it was reasonable for the jury to conclude, based on the

medical examiner’s testimony, that Appellant had also stabbed Donahew.

Applying the appropriate standard of review,6 we therefore hold that the

evidence is factually sufficient to support the jury’s verdict.    We overrule

Appellant’s first point.

                            Seizure of DNA Sample

        In his second point, Appellant argues that the trial court committed

reversible error by denying his challenge to the taking of a DNA sample from his

body.

        In August 2001, a DNA sample was taken by swabbing Appellant’s

mouth. It was taken in compliance with a general provision requiring routine

collection of DNA samples from individuals who had been convicted of certain

offenses.7    When the sample was entered into DPS’s CODIS, it became

available for comparison with the DNA evidence acquired when Donahew’s



        6
       … See Neal v. State, 256 S.W.3d 264, 275 (Tex. Crim. App. 2008),
cert. denied, 129 S. Ct. 1037 (2009); Lancon v. State, 253 S.W.3d 699, 704
(Tex. Crim. App. 2008); Watson v. State, 204 S.W.3d 404, 414–15, 417
(Tex. Crim. App. 2006); Johnson, 23 S.W.3d at 8, 9, 12.
        7
      … See Act effective Sept. 1, 1999, 76th Leg., R.S., ch. 1368, 1999
Tex. Gen. Laws 4626, 4626–27 (current version at Tex. Gov’t Code Ann.
§ 411.148 (Vernon Supp. 2008)).

                                      14
body was examined. When those samples taken from Donahew were uploaded

into CODIS, they showed a match with Appellant’s DNA profile.

      The trial court denied Appellant’s motion to suppress the DNA evidence.

Although the DNA sample at trial was taken pursuant to a warrant, dated

December 5, 2005, the warrant was obtained based on the CODIS match,

which had been based on the initial 2001 DNA sample obtained from Appellant

without a warrant but pursuant to the government code provision. The Texas

Court of Criminal Appeals has addressed this issue and has decided it contrary

to Appellant’s argument:

      Although the taking of a blood sample for DNA analysis purposes
      is clearly a search, the Fourth Amendment does not proscribe all
      searches, only those that are unreasonable. The United States
      Supreme Court has yet to address the validity of state and federal
      DNA collection statutes under the Fourth Amendment, but state
      and federal courts that have addressed the issue of a warrantless
      search for DNA databank samples pursuant to statute are almost
      unanimous in holding that these statutes do not violate the Fourth
      Amendment.

            The courts deciding this issue have split in their rationale.
      Some have stated that DNA collection statutes permit a
      warrantless, suspicionless search under the Supreme Court’s
      “special needs” test. Most federal and state courts, however, have
      upheld the DNA databank statutes under the “totality of
      circumstances” test. This trend increased after the Supreme
      Court’s decision in Samson v. California, which used the “totality
      of the circumstances” test to uphold suspicionless searches of
      felons on parole, as long as the searches are not arbitrary,
      capricious, or harassing. Even before Samson, numerous courts
      had applied the “totality of the circumstances” test and concluded

                                      15
      that the governmental interest served by collecting DNA
      outweighed the minimal intrusion upon a probationer’s or parolee’s
      privacy. We agree with those jurisdictions that have held that
      warrantless DNA collection and databank systems pass Fourth
      Amendment scrutiny under the “totality of the circumstances.” 8

Following the mandatory precedent of the Texas Court of Criminal Appeals, we

overrule Appellant’s second point.

                                 Mistake of Fact

      In his third point, Appellant argues that the trial court reversibly erred by

failing to include a mistake of fact jury instruction in the jury charge. Section

8.02 of the penal code provides that it is a defense to prosecution that “the

actor through mistake formed a reasonable belief about a matter of fact if his

mistaken belief negated the kind of culpability required for commission of the

offense.” 9 A defendant is entitled to an instruction on mistake of fact if the

issue is raised by the evidence. 10 If the evidence when viewed in the light

favorable to the defendant does not establish a mistake of fact defense, the

instruction is not required.11




      8
        … Segundo v. State, 270 S.W.3d 79, 97–98 (Tex. Crim. App. 2008)
(citations omitted).
      9
          … Tex. Penal Code Ann. § 8.02(a) (Vernon 2003).
      10
           … Beggs v. State, 597 S.W.2d 375, 380 (Tex. Crim. App. 1980).
      11
           … Granger v. State, 3 S.W.3d 36, 38 (Tex. Crim. App. 1999).

                                       16
      The indictment charges that Appellant intentionally caused the death of

Linda Donahew by strangling her with his hand or hands, or with an object

unknown to the grand jury, by stabbing her with a knife, or by any combination

of strangling and stabbing her with a knife, and that Appellant was in the

course of committing or attempting to commit the offense of aggravated sexual

assault when he caused her death. Smith testified that Appellant told him that

he had been having sex with Donahew and had unintentionally strangled her

during sex and that the strangulation was part of the sex act. The trial court

refused to instruct the jury regarding a mistake of fact on Appellant’s part

regarding the degree of the compression of Donahew’s neck. To the extent

that the manual strangulation was the cause of death, Smith’s testimony raises

the issue of mistake of fact. Accordingly, the trial court should have given the

mistake of fact instruction and erred by not doing so.

      Error in the charge, if, as here, properly preserved in the trial court,

requires reversal if the error was “calculated to injure the rights of [the]

defendant,” which means no more than that there must be some harm to the

accused from the error. 12 In other words, a properly preserved error will require



      12
        … Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Abdnor v.
State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see also Minor
v. State, 91 S.W.3d 824, 827–29 (Tex. App.—Fort Worth 2002, pet. ref’d)

                                       17
reversal as long as the error is not harmless.13 Whether Appellant suffered any

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

evidence, 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.” 14

      The jury was instructed that a person commits aggravated sexual assault

if he “intentionally or knowingly causes the penetration of the mouth of another

person, who is not the spouse of the actor, by the sexual organ of the actor,

without that person’s consent, and if the person causes serious bodily injury or

attempts to cause the death of the victim.” The trial court also instructed the

jury that serious bodily injury means “bodily injury that creates a substantial risk

of death or that causes death, serious permanent disfigurement, or protracted

loss or impairment of the function of any bodily member or organ.”

      The jury charge, then, implicitly instructed the jury that if Appellant

caused Donahew’s death in the course of committing sexual assault, he had

committed aggravated sexual assault, and the jury charge explicitly instructed




(applying analysis).
      13
           … Almanza, 686 S.W.2d at 171.
      14
           … Id.; see also Ovalle v. State, 13 S.W.3d 774, 786 (Tex. Crim. App.
2000).

                                        18
the jury that if Appellant caused her death during the commission of aggravated

sexual assault, he had committed capital murder.        That is, the jury was

implicitly instructed that the act that converted sexual assault into aggravated

sexual assault could be the same act that converted this offense into capital

murder.

      Although the capital murder statute provides that a person who causes

the death of another individual in the course of committing kidnapping or

robbery commits the offense of capital murder, this statute does not allow for

the conviction of a person for capital murder if the person committed simple

sexual assault rather than aggravated sexual assault.15 That is, a person may

commit simple kidnapping or robbery, without an aggravating element, and if

the person causes death during the commission of one of those offenses, the

person commits capital murder.16 But in regard to sexual assault, a person is

guilty of capital murder only if the person causes the death in the course of

committing aggravated, not simple, sexual assault.17     Neither the State nor

Appellant suggests that the aggravated sexual assault was proved by evidence

of the attempt to cause the death, which in this case was successful. Can the


      15
           … Tex. Penal Code Ann. § 19.03(a)(2) (Vernon Supp. 2008).
      16
           … Id.
      17
           … Id.

                                      19
attempt to cause the death be carved out as a separate aggravating factor from

the successful act of causing the death? Appellant did not raise this issue as

part of his sufficiency claim; we bring it up only in addressing harm.

      The medical evidence establishes that Donahew was both strangled and

stabbed. There is no evidence of a threat that would elevate the sexual assault

to an aggravated sexual assault.18 Although both means of causing the death

were submitted to the jury, there is no evidence that the stabbing was

accidental or the result of a mistake of fact. Additionally, the evidence shows

that Donahew was stabbed while she was still alive. It was the stab wound,

not the strangulation, that the medical examiner testified was delivered to

“really make sure [she was] going to die.”          Although the medical examiner

described the cause of death as “manual strangulation and the second cause

of death was a stab wound to the left neck,” the stab wound was delivered to

a living person.

      Both the indictment and the jury charge allowed the jury to convict

Appellant of capital murder if the jury found that Appellant had caused

Donahew’s death by stabbing her with a knife in the course of committing

aggravated sexual assault.         “When a general verdict is returned and the




      18
           … See id. § 22.021(a)(1), (2)(A)(ii)–(iii).

                                           20
evidence is sufficient to support a finding of guilt under any of the paragraph

allegations submitted, the verdict will be upheld.” 19

      The record before this court would allow the jury to view the strangling

as the threat of death or serious bodily injury in the course of sexual assault to

raise sexual assault to an aggravated offense.20 The jury therefore could have

found that the stab wound caused the death in the course of Appellant’s

committing aggravated sexual assault.

      The State was obligated to prove that Appellant intentionally caused

Donahew’s death. Failure to include the requested instruction on mistake of

fact would at first glance seem to necessitate a determination that Appellant

suffered some harm as a result of that failure. But here, Donahew was not only

strangled; she was also stabbed, as the medical examiner phrased it, to make

sure that she was really dead. It was therefore unnecessary for the jury to find

that Appellant intended to strangle her to death in order for the jury to find that

he intentionally caused her death by stabbing her in the neck. Mistake of fact

went only to the strangling, not to the stabbing.




      19
       … McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.), cert.
denied, 522 U.S. 844 (1997).
      20
           … Tex. Penal Code Ann. § 22.021(a)(1), (2)(A).

                                        21
      Because of the presence of the stab wound, we conclude that Appellant

did not suffer any harm from the trial court’s refusal to give the mistake of fact

instruction regarding the degree of compression of Donahew’s neck.

Accordingly, we overrule Appellant’s third point.

                            Rule 803(3) Statement

      In his fourth point, Appellant argues that the trial court reversibly erred

by admitting a statement by Donahew that she was going to show her pickup

to a man who might be interested in purchasing it. Appellant argues that he

was entitled to confront and cross examine the witness about the statement

and that its admission constituted inadmissible hearsay and a denial of his rights

under the Confrontation Clause of the Sixth Amendment.

      Linda Reed testified that Donahew was a close friend and had come to

her house for a visit around 11:00 a.m. on the day she died. Donahew left

around 3:00 p.m. that afternoon, and as she left, she told Reed that she was

nervous because later she was going to show her pickup truck to a man she

had met at the stables and that he might buy it from her. Reed testified that

Donahew had a bad feeling about the meeting.




                                       22
      The State argues that the statement was not testimonial and therefore

not subject to a Crawford analysis.21      We agree.   The Sixth Amendment

Confrontation Clause forbids the admission of testimonial statements of a

witness who does not appear at trial unless that person was unable to testify

and the defendant had a prior opportunity for cross examination.22         The

Supreme Court suggests that testimonial statements are those “made under

circumstances which would lead an objective witness reasonably to believe that

the statement would be available for use at a later trial.” 23 The State argues

that such casual remarks made to friends are generally not testimonial. Under

the limited facts of this case, we agree that Donahew’s statement to Reed was

not testimonial but, rather, a casual remark expressing her intent to go show

her truck. The statement about being nervous is an indication of her state of

mind. There is no indication that Donahew made her remark to Reed under

circumstances that would have led an objective witness to believe that the

statement would be available for use at a trial later. Because the statement

was not testimonial, it does not violate the Confrontation Clause.



      21
           … Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004).
      22
        … Vinson v. State, 252 S.W.3d 336, 338 (Tex. Crim. App. 2008)
(citing Crawford, 541 U.S. at 53–54, 124 S. Ct. at 1365).
      23
           … See Crawford, 541 U.S. at 51–52, 124 S. Ct. at 1364.

                                      23
      Regarding Appellant’s contention that the statement is inadmissible

hearsay, the State argues that under the Hillmon doctrine, 24 a remark is

admissible as a hearsay exception under rule 803(3) if it constitutes a

statement of present state of mind offered to prove subsequent conduct in

accordance with the state of mind. We disagree with the State’s analysis but

not its ultimate conclusion that the statement was admissible.      Donahew’s

statement was not admissible to show that she did indeed go to show her

truck. It was not admissible for the truth of the matter asserted but rather to

show her intent, her state of mind.25 We overrule Appellant’s fourth point.

                                    Conclusion

      Having overruled Appellant’s four points, we affirm the trial court’s

judgment.




                                                  LEE ANN DAUPHINOT
                                                  JUSTICE

PANEL: LIVINGSTON, DAUPHINOT, and GARDNER, JJ.

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

DELIVERED: August 20, 2009



      24
           … Mut. Life Ins. Co. of N.Y. v. Hillmon, 145 U.S. 285, 12 S. Ct. 909
(1892).
      25
           … See Tex. R. Evid. 803(3).

                                         24
